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Background Reading Book Outline
À| @odern Statutory and Institutional Framework 66-97 2-7
À| mLRB Procedures, Organization, and Jurisdiction 99-145 7-13
Exclusive Representation
À| Overview(   , 
 !""#$%& "'($) 445-459 14-17
À| áuty of Fair Representation ((") 1019-1024 18
À| ? e áuty and Contract megotiationsŒ)$""#($$%* 1024-1041 19-20
À| ? e áuty of Fair Representation and Grievance Processing (-'+$+$,) 1041-1061 21-24
À| Procedural Aspects of Fair Representation Litigation 1061-1064 24-25
Enforcement of Collective Agreements
À| Arbitration and t e Courts (Steelworker¶s trilogy)
!| ? e áuty to Arbitrate (("!-.* 735-761 25±29
!| Judicial review of Arbitration Awards (("!-) 761-776 30±32
!| mo-Strike Obligations (c '&" $%/)-() 776-796 32±34
À| Arbitration & t e mLRB: Arbitration and Statutory Rt¶s(/((+$()%'0 +%$1$2+") 796-817 34±38
Protection of Worker Concerted Activity
À| Concepts of áiscrimination and Interference( %%+$ ,( +33$+%3'+  2($) 147-178 38-43
À| Accommodating Employee § 7 Rig ts and Employer Interests (4'5+ "'5+c'0+ ,   %+ 178-207 43-49
 $%/+. 
"'( c$,+"$,($)
À|Protected Activity (0$,($ "  +
"-c 4+3 (%+ 
(5+ $%) 207-231 49-54
!| Individual Employee Action( (/"+$,($) 231-248 54-56
!| pnion Waiver of Employee §7 Rig ts (,$25; (
%$) 248-257 56-58
À| Employer áomination of a Labor pnion(
"'(($+ !$ -.+ $%$,6Œ*Œ*) 257-274 58-60
NLRB Determination of Bargaining Authority
À| Appropriate Bargaining pnit (     .#&$%"/' ) 276-292 61-65
!| Judicial Review of pnit áeterminations(c%#( ,) 292-307 65-68
À| Regulation of t e Conduct of Elections( ($ . 2$%"# $" 0# "/!%# $%
5'"# 307-362 68-78
" 4#"# !$. -#%"$%$ $'#$/2""#
5'0$,(#2#'*
À| Recognition Wit out an Election("#c$%$c 4) 362-377 78-81
À| Ousting an Incumbent pnion
!| Bars to Elections (-# $('($%',$($#"'-$, 0,"'/) 380-389 81-84
!| Ousting a pnion ( ""$(!$#c2(7) 389-404 84-86
Obtaining Bargaining Authority Outside NLRB Elections
À| Employee Free C oice Act of 2007(""; $0% "($$#8""#$  # '-$#"$$) 407-444 86-92
Regulation of the Process of Collective Bargaining
À| Collective Bargaining and t e Good Fait Requirement($  ,$(#  $  1$%!'0#8() 460-490 93-97
!| áisclosure Obligations ( ((#((
% ) 490-500 97-98
!| Impasse (8(7) 500-511 98-100
À| @andatory/Permission Subjects (,1$) 511-525 100-102
!| Bargaining over Entrepreneurial áecisions (&44%#( ()"$( #  ) 525-545 102-104
À| @ultiemployer and @ulti-pnion Bargaining ($$c$$) 546-556 104-105
À| @idterm Bargaining ( ""% 0 - (( "#'43, #"! -$,#9 " ) 556-570 105-108
Weapons of Economic Conflict: Economic Pressure, Bargaining and Strikes
À| Strikes and Employer Countermeasures($  ,(); '-/%#&"(!%")#c%"!) 571-589 109-113
!| Impact Analysis ( 
(#($# ) 589-608 114-117
!| Effect of -/on t e pnion @ajority Status( ($1(0$) 608-616 118-119
!| Lockouts (  04 "%$,# 33"c$$#!$) 616-628 119-121
!| Subcontracting Struck Work (c$% # 628-633 122-122
À| Regulation of Pressures by Labor Organizations
!| Constitutional Limits on Government Regulation(-,(#c ) 633-641 122-124
!| Secondary Pressures (/" /!(#  / '-# $2  "%$,# % . '0$ 641-664 124-129
-# 
$$%)
!| Appeals to Consumers (2((#("#& (#3  #("% ) 664-680 130-133
!| aot Cargo Clauses ( ()" %!-# ($$(""($#
$(# $$"") 680-695 133-138
!| Work Assignment áisputes("()$$)
1|Labor Law

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  cc   c  695-699 138-138    .

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OSaA. etc. áone in *| Gov¶t legislation for maximize wages and not t e CBAs. *| E. ?he Norris-LaGuardia Act of 1932 À| ‘    (1908) and . of t e market. strikes t e same way.. compensation until later in !| Assumptions: !| If skills do make employees career.. skills opportunities wit in t e firm. market. problem) áepends upon t e structure *| Worker committees. !| Alternate ways? *| Workers are seeking to *| Reduces costs. !| Workers develop skills !| Cure existing inefficiencies.g. @oney can Common in Europe come from capital OR by (Germany). !| Collective voice to improve. !| Place risk of layoffs on new benefits. minimum wages and leisure. safety.g. *| aig ly mobile labor more mobile. more ires (seniority system) Bp?. enforcement likely a transfer of wealt . Sometimes t e only labor opportunities train and s are skills wit in reason unions survive.² knowledge of alternate !| Encourage workers to cross. !| If monopolized firm. t e employer !| Promoting public goods in force must increase job security t e work place. firms ire less not in t e general labor relations ips and deferral of workers. Set up by driving people into law and doesn¶t result in unemployment. resources to learn new !| meed met ods to allocate job rat er t an exit. *| Workers ave wit in t e firm. (E. *| Workers can obtain t e firm. increase cost per unit of valuable to t e employer but !| Increase long-term output.  c  ?heories Behind Labor Unions Neoclassical View Internal Labor Markets Can unions increase productivity? !| pnions increase wages.

t en get a court injunction to enforce.  À| a      (1917): Court up eld an injunction against union organizers w o soug t to persuade employees to become union members despite signing yellow-dog Ks (agreeing not to join a union or be involved in union activities during t e term of t eir employment). !| Case did not involve rig ts of workers b/c ás ad no agency wit Ps employees²t e rig t of t e worker¶s to strike would not give ás t e rig t to instigate a strike. !| pp eld freedom of K between employees and employers. Yellow-dog Ks:requiresemployees to agree not to join a union or be involved in pnion activities as a condition of employment. 2|Labor Law .    (1915): ? e Supreme court strikes down legislation t at outlawed yellow-dog K¶s.

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Confers broad immunity from issuance of fed¶l and state injunctions in labor disputes. coal industry. !|        (4t Cir. !| Clas ed wit emerging sentiments in Congress. À| Railway Labor Act (1926) (Carried Forward WWI pnionization of t e Railroads)& áavis-Bacon Act (1931) (Prevailing wage and work rules (typically pnion set) act for Federal Public Works) & Great áepression of 1929 increased sentiments in favor of labor org.  cc   c  !| ? e pnion allowed members to remain at work in violation of t eir K¶s of employment until t ey ad sufficient numbers to instigate a strike²t is amounted to interference wit t e employer¶s constitutional rig t to remain union-free. À| N-L Act(1932):Attempted to perfect t e CL model for regulating labor disputes rat er t an as an effort to promote t e labor org. directly. !| Ê      . À| Federal Courts exercised t eir equity power to effectively compel nonunion s ops t roug out entire industries. 1927): Barred organizing of t e entire W. Va. and collective bargaining.

!| § 4:      .         and recognized t at individual employees bargaining on t eir own could not exercise ³actual liberty of K´ (overriding ('0$).

!| § 7: Imposed          !   including limiting t e issuance of 5 ( orders to w en ³a substantial and irreparable injury to complainant¶s property will be unavoidable. protected officers and ot er members from liability for unlawful acts of individual members.!   or restraining orders against becoming or remaining a union member or engaging in union activities.´ !| § 6: Afforded       . imposed procedural conditions on issuance of injunctions in labor disputes not covered in § 4.

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limited t e protections of t e Act in decisions ³accommodating´ t e Act to § 301 of t e c4$. !| § 11: Required jury trial for contempt proceedings ot er t an t ose committed in t e presence of t e court. in restraint of trade or commerce. for damages for conducting a strike in violation of t e S erman Act."  including immunizing union officers from liability of illegal acts of individual members.$("($ '(3:. Lasted over a mont and a alf. combination . Reexamination of the Antitrust Laws À| ‘ %a   #   (1940) !| Facts: Interstate osiery company sues labor org. Labor org. !| § 10: Certification of Appeal of ?LI to t e COA¶s.´ 3|Labor Law .Ct. À| Modern Applications of the m #$  ‘: S. . !| § 8: Clean ands doctrine on employers seeking injunctions. or conspiracy. at time only 8% of Apex¶s employees were members. ordered a sit-in strike. . . *| S erman Act pro ibits: ³Every . . !| § 9: Injunctions only cover specific acts.<.

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  cc   c  !| Issue: W et er t e strike falls under t e kind of ³restraint of trade or commerce´ w ic t e act condemns. !| aolding: S erman Act only applies to labor org. activity t at restrains commercial competition in some substantial way by  .

*| áist. and leaders were indicted (under AG¶s program of using 0$ $(( ( '( to break bad union be avior.   aere. s owing t at Congress does not regard labor org. t/f it cannot be a ³restraint of trade or commerce. ? e labor org. t e strike ad no affect on t e osiery market. (%5($3$$'(2(/%(3' $. *| S erman Act applies w en acts restrain commercial competition in some substantial way. t/f restraints on t e sale of employee services to an employer cannot be a restraint of trade or commerce under t e S erman Act.: a secondary boycott and refusal of a nationwide union to work on a product in t e ands of t e purc aser.¶s affect on competition as against public policy. object of strike was to compel Apex to accede to union demands and t e strike ad no affect on t e osiery market (nor was it intended to). In t ose cases.). *| Clayton Act says labor is not a commodity or article of commerce.´ !| Reasoning: *| Legislative aistory . refused to work for An euser-Busc and attempted to get members of ot er unions to similarly refuse to work. !| aolding:Congress restored § 20 of t e "/($ '( in t e 1c '( to create a       . cases involving labor org. aERE.´ *| ? at violence was used doesn¶t c ange t e fact t at t e strike was not under t e act. ³t e activities affecting interstate commerce were directed at control of t e market and were so widespread as substantially to affect it.Strike also affected 2d employer tenant of Busc .Purpose was to prevent restraints to free    . See also m-L Act.$ Apex¶s%($'($4(($(3''"'(($$%(0%'(%((0"$($3 %33$'4%$"4($%% !| Facts:Labor org. À|   a    (1941) . Also attempted to union members and t eir friends to stop buying An euser-Busc beer. *| 0$ '( not a remedy for local law violations.

´ including t e 0$c!.S. Clayton Act. or rep. of persons in negotiating. *| ?rade union activities violative of the Sherman Act cannot be criminal conduct. and m-L Act toget er to determine w et er trade union conduct violates t e S erman Act. À| All t e acts complained of are covered by § 20 of t e "/($ '( even t oug t e object of t e dispute is t e competing labor org. $" t e Ps combined wit outsiders to t e immediate dispute w o s ared in t e conduct. À| mot ing in t e "/($ '( distinguis es b/t conduct directed at an employer- employee labor dispute and a struggle b/t two labor orgs seeking favor w/ t e same employer. 4|Labor Law . !| Reasoning: *| @ust read S erman Act. *| m-L Act. § 13(c) defines ³labor dispute´ as ³any controversy concerning terms or conditions of employment.§ 20 of t e "/($ '( removes certain trade union activities from being criminal conduct so long as the union operates: 1) in its self-interest and 2) does not combine with non-labor organizations. or concerning t e assoc.      remove all suc allowable conduct from t e ³taint of being violations of any law of t e p..

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À| ?he National Labor Relations Act (NLRA) !| Wagner Act of 1935 *| Origins: À| Economic Collapse of t e 1930¶s lead to t e disappearance of ³welfare capitalism´ and s ifted political power toward farm and labor groups À| ($"$% ("'2/ '(3:>>: Companies were to organize t emselves to eliminate cut-t roat competition and stabilize prices !| @ax. craft. . !| áuring t e proceedings t e parties were under obligation to maintain t e (( =  !| Created a grievance board.  !| Created a duty of employers and employees to resolve disputes peacefully.´ § 13(b) defines person participating/interested in a labor dispute if ³engaged in t e same industry. !| Railway workers ad t e rig t to select t eir own representative wit out interference. regardless of !0(0$((0% ($(($%$(05("($3"/ $% "/. or is a member. or seeking to arrange terms or conditions of employment. À| @ay not read t e acts toget er to interpret Congress¶ intent in a ³spirit of mutilating narrowness´ *| ? e purpose of t e 1c '( was to restore t e broad purpose of t e "/($ '(after its narrow judicial construction by ´infusing into it t e immunized trade union activities as redefined by t e later act. maintaining.´ *| ? e 3 Statutes cannot be read toget er as preventing an injunction under t e 1c '( yet allowing for criminal prosecution of t e exact same conduct removed from t e equity powers of t e federal courts. or as a direct or indirect interest t erein. !| Arbitration if mediation unsuccessful. or agent of any assoc. Modern Labor Legislation: Affirmative Protection of Collective Representation À| ?he Railway Labor Act (RLA) Passed in response to conflict following t e $(($ '( 3 : t at returned t e railways to private carriers following WWI. . . of employers or employees engaged in suc industry . Railroad Adj. Wages: designed to boost employment and increase purc asing power of t e workers !| Rig t to Organize 5|Labor Law . !| ? en to t e President w o could convene and emergency %1'board. antitrust laws have rarely been asserted against union²only where there is collusion between unions and management in restrain of interstate trade. !| Later amendments created t e mat. and to make and maintain agreements (early duty to negotiate?). or occupation in w ic suc dispute occurs. !| Created a 5-person Board of mediation to attempt mediation if parties could not come to an agreement on t eir own. officer. . coercion or influence by t e carriers. . c anging. Board to ere ³minor disputes´ re: interpretations of agreements and a set of pLP¶s t at applied only to carriers. aours/@in. composed .  cc   c  fixing. trade.´ À| Since a   .

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or assist labor organizations À| Freedom to bargain collectively wit t e employers À| ? e rig t to engage in concerted activity for t e purpose of collective bargaining or mutual aid and protection *| § 8: Employer pLPs and t e affirmative duty of employer to bargain collectively À| Employer must refrain from interference. Board !| Establis ed principle of exclusive bargaining !| ? m#‘ &'()* *| § 7: Rig ts of t e employees: À| Freedom to form. *| m#  # . join. coercion.  cc   c  !| But contained no mac inery for andling labor disputes (President eventually establis ed t e mLB) À| Ruled unconstitutional as a invalid exercise of Congress¶ Commerce Clause Powers in '0'0( "(/2   ²Congress could not regulate t e wages and ours of EE¶s dealing wit a product t at ad left (or not entered yet) t e stream of commerce !| Still establis ed utility of a strong Admin. or restraint of employees in t e Exercise of § 7 rig ts À| Refrain from Support or domination of Labor Org. À| Refrain from disc arge or ot er discrimination against an employee for filing a c arge or giving testimony À| Cannot refuse to bargain collectively wit majority Rep. À| Refrain from áiscrimination for t e purpose of encouraging or discouraging members ip in an Org.

to eliminate t ese strikes. J&L is national enterprise. !| mLRB c arged J&L. À| aolding:Congress¶ power over congress is plenary and . a steel and iron manufacturer.    (1937)1((%'$(( ($"(/3(0 c  À| Facts: mLRA est. !| COA eld t e act unconstitutional. w/ pLP of firing employees b/c t ey soug t to org. a union. Contained ³findings´: denial of rig t to CBAs lead to strikes affecting commerce. a compre ensive system for regulating labor/management relations by establis ing rig t of employees to engage in CBAs and create a board to supervise elections and enforce t e Act¶s pro ibition of suc unfair labor practices as discrimination against union members.S. áeclared to be t e policy of t e p.

    

  
   

  
       
 
     
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Congressional power to protect interstate commerce may be
used to reac activities t at are deemed to merely burden or
obstruct interstate commerce.
À| Reasoning:
!| ULPs in Question: Fundamental rights of the workers to self-org. and
select representatives of their own choosing for CBAs w/o
restraint/coercion by employers. ?his is a ³proper subject´ for
condemnation by the legislature.

6|Labor Law

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pFCW ± no review over discretionary decision 4. or t e intermediate report receives t e same weig t as a decision by t e Board. due to adjudicative policy- making.| Issuance of complaint: importance of GC. 1974 aealt Care Industry Amendments. OSaA of 1970.  cc   c  !| Judicial notice t at t e refusal to confer and negotiate as been one of t e most prolific causes of industrial strife. À| Other Congressional Enactments: ?aft-aartley Act of 1947. Proposed Labor Reform Act of 1977 and Ot er Failed Legislation. À| 2 Main Functions of the Board: !| pLP or Complaint Proceedings: Prosecute and remedy pLPs !| Representation Proceedings: Conduct elections to determine w et er a majority Of employees wis to be represented by a union Adjudication 1)| ULP Procedures 1. As composition c anges. AND JURISDIC?ION NLRB: 5-member board. reason w y unions are less successful today) include: Fair Labor Standards Act of 1938 (overtime pay). Ot er major statutes (specific in nature.| Enforcement/Review in t e COA ± aggrieved party/employer w o files first gets to forum s op.| Appeal from t e Board¶s Findings to t e COA w ere t e pLP occurred or w ere t at party does business: *| Wide latitude to employers to Circuit s op *| Scope of Review: À| $2+   2  c. policies c ange. 475 (1951): Review findings of fact based on substantial evidence contained in t e record considered  !0" (all t e evidence must be weig ed) 7|Labor Law .S.| Regional investigation 3. President nominates and Senate confirms (problematic process). ORGANIZA?ION. !| ? e stoppage of J&L¶s operation would ave a serious effect on interstate commerce and is an urgent national concern. NLRB PROCEDURE.| Filing of c arge: any ³person´ 2.| If exceptions are filed to t e Board t en t e Board takes complete control over t e case and issues its own decision *| @ay designate aut ority to a panel of 3 examiners *| mot directly enforceable. but see 8$( '-/ 2 (129) re affirmative defenses and burden switc ing 5. 6. etc. 340 p. need to get injunction from COA 7. Landrum-Griffin Act of 1959. ?itle VII Civil Rig ts Act. W en mLRB decision is not followed.| aearing before ALJ ± § 10(c) burden of proof on GC. must go to COA to get injunction and enforce 8.| ALJ decision and exceptions: Bot parties ave 20 days to submit exceptions.

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S. !| Region must seek injunction if ³rsbl cause.´ À| § 10(j) injunction for all ot er pLPs (not used as muc ). 837 (1984): W ere statutes are ambiguous and Congress did not speak directly to t e issue at and. s owing of interest À| Regional office investigation (e. t en review is based on $2  ) substantial evidence test. !| Requires mLRB aut ority but t e board can delegate to regional directors (w ic as been done in t e past). t e courts must s ow great deference to t e agency¶s interpretation if it is based on a permissible construction of t e statute À| @ixed questions of Fact and Law: !| $(%$ $'+390 p.. 8(e).S. and 8(b)(7)±so-called mandatory injunctions in district court. !| uery: Can t e agency do more to facilitate 10(j) applications? 3)| Representational Proceedings À| Petition for election (certain criteria). 467 p. eligibility) À| Limited appeal to mLRB À| Election and certification À| mLRB review (mLRB decision must be ³totally unlawful´ to be reviewed) À| Limited judicial review (c%): very difficult for union to convert to pLP case Rulemaking À| ? e mLRB as broad rulemaking aut ority but as c osen to make labor policy almost exclusively t roug adjudication À| Advantages !| Reasoned and legitimate decisions !| Expanded informational input !| Certain Law !| Consistent law !| Public participation 8|Labor Law .g. 254 (1968): Is t e agency using t e correct standard? If so. !| Regional director can proceed wit mLRB approval.  cc   c  À| Findings of law reviewed %$2. Bp?: !| 02$2 $(  '3+  $'". application for bargaining union. *| RE@E@BER ?aA? ?aE PAR?Y WaO FILES FIRS? GE?S ?O FORp@ SaOP À| Appeal or enforcement À| W ere t e pLP occurred or w ere t e party resides or does business 2)| Preliminary Injunctive Relief À| § 10(1): for sections 8(b)(4).

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Position t at t e mLRB must use rulemaking w ere it was reversing long-standing precedent. À| Lawful?Circuits are split on w et er t e mLRB can make new rules (applying prospectively) by adjudication in individual cases rat er t an going t roug t e usual rulemaking process. BU?: *|    (1984): W ere statutes are ambiguous and Congress did not speak directly to t e issue at and. t e application of t at standard to istorical facts is governed by $2  ¶s ³substantial evidence´ review on t e record considered as a w ole. À| W en reading cases: to w at extent is t e court using t e correct standard??? Jurisdiction À| Scope of Review: !|   (1951): Review findings of fact based on substantial evidence contained in t e record considered !0" (all t e evidence must be weig ed). !| Mixed questions of Fact and Law: *|   .(1966): Announced new general rule t at requiring employers to disclose t e names and addresses of unit employees w/i 7 days of t e approval or direction of an election²did not take affect until 30 days from t e decision and so did not affect t e parties involved *| m#  $   (1969): Board acted improperly in 5'" by promulgating a rule Bp? t e subpoena ad been issued as part of a valid adj. particularly w en sanctions are involved. t en review is based on $2  ) substantial evidence test. proceeding and s ould be enforced. (1968): Is t e agency using t e correct standard? If so.  cc   c  !| Centralized appellate review !| Reigning in t e GC À| Proposed Rule: Every employer must post notices informing employees of rig ts under mLRA. Scope of Review: Nature of Agency Decisions under Review À| a - ($2" ) À|   for t e court. t e courts must s ow great deference to t e agency¶s interpretation if it is based on a permissible construction of t e statute. 113) !| Is t e agency using t e correct standard? !| If so. but !| C evron deference doctrine (107) *| áeference to expertise of agency if plausible À| ‘     ($(%$ . *| m# ‘    (1976): Reversing t e 2d Cir. !| SCO?pS a s made clear t at t e Board as broad discretion in c oosing b/t rulemaking and adjudication as a policy-making ve icle. *| „%     + . À| Commerce clause and the Board¶s Jurisdictional Self-Limitation: § 10 extends jurisdiction of t e mLRA to cases ³affecting commerce´ 9|Labor Law . !| Findings of law reviewed   .

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À| ?he Religious Exemption: !| m#     . !| Board¶s commerce power is coextensive w/ Congress. or burdening or obstructing commerce or t e free flow of commerce.  cc   c  !| § 2(7): In commerce. or leading to or tending to lead to a labor dispute burdening or obstructing commerce or t e free flow of commerce.

insurance. Gov¶t workers (subject to RLA±different rules b/c strikes can urt economy). áomestic service in t e ome. *| m#    . Religiously Associated´ test and t e actual assertion of jurisdiction over teac ers in c urc -operated sc ools. 440 U. Economic reality is t at employer as all t e power and oug t to be able to unionize. Look at amount of control and w et er employees could protect t eir rig ts. *|    . 490 (1979): Board lacked jurisdiction over teac ers in c urc -operated sc ools because bot t e inquiry required under t e Board¶s ³Completely Religious v. pension.? e economic facts of t e newsboy-newspaper relations ip more closely resembled t at of an employee- employer relations ip t an of an independent business enterprise. (1968):5% ? ($ 2!  ? e Board classified 3300 debit agents as employees rat er t an I/C¶s and t e COA reversed. !| Functions are essential to t e company¶s normal operations !| ? ey sell only t e company¶s insurance and operate under a commission structure promulgated and c anged unilaterally by t e company !| Regular reporting procedures !| Benefits of t e company¶s vacation plans.  À| Statutory Exclusions: § 2 . even if it would ave made a different c oice. Supervisors. Serious 1st Amendment issues. . etc« !| Permanent working relations ip.  À| aolding: ? e Board applied t e law to t e facts and arrived at a c oice between 2 fairly conflicting views w ic t e COA s ould ave up eld. Agricultural laborers (state statutory provisions).  À| Rationale: CL of agency s ould apply: !| ? e agents do not operate t eir own businesses but under t e companies name wit training and considerable assistance and guidance form t e company ant its managers.S. 1)| Independent Contractors *| m#  a  (1944)          ..Independent Contractors.

  + .  10 | L a b o r L a w . À| Rationale: Rejected t e argument t at employer¶s rig t to control t e manner and means of t e work s ould be weig ed more eavily t an ot ers. (1998): áispute over t e classification of delivery drivers À| aolding: áelivery áriver¶s were employees w en all t e factors are assessed equally according to c/l principles of agency.

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  cc   c  !| árivers were not independent and were performing an essential function of Roadway¶s business !| árivers owned t eir own trucks but trucks were leased t roug a supplier designated by Roadway and modified suc t at t ey ad very little ot er use !| ? e ?rucks usually were left overnig t for reloading and so were not available for independent use !| Company set minimum and maximum deliveries t ereby controlling t e income of t e drivers *| á‘  (1998)1 Anot er delivery driver dispute  À| aolding: ? e áriver¶s were Independent Contractors w ere t ey drove t eir own trucks. 2)| Implied Exclusions: Students (interns. . and Confidential Personnel *| Statutory definition = BROAá *| m# ‘    (1974) . to be combined primarily wit capital provided by ot ers´ and exclude ³t ose w o sell a product or service t at combines t e workers¶ labor to a significant extent wit t eir own non uman capital. could make deliveries for ot er companies.´ Basically a way of defining entrepreneurial activity. À| Facts:? e mLRB excluded only management employees engaged in t e formulation and implementation of "4 policies²w et er t e person classified as an EE is free of conflicts relating to formulation and implementation of labor policies? À| aolding: ? e c impliedly % .? e mLRA excluded all ³managerial employees. and t ere was only a flat fee per delivery but know guaranteed minimum compensation. ad control over t eir trucks and work sc edules. Managerial. *| Alternative test: an mLRA-specific test t at would include as employees ³all workers w o sell t eir labor . grad students ± now restrictive but Lync sees c anges coming). . residents. 3)| Supervisory. received very little training from t e company.´ but on remand t e Board determined t at t e Buyer¶s were mere employees and not managerial because t ey lacked t e aut ority to formulate policy or discretion independent of t eir employer¶s establis ed policy. Confidential employees (Labor nexus test). @anagerial employees ("" ').

minimizing t e conflict between management and employees in favor of overall 11 | L a b o r L a w . (#         . so on remand t e result was t e same) À| Rationale: ? e Board¶s prior decisions as to w et er "" managerial EE¶s are excluded from t e Act were uncertain owever t e legislative reversal of t e '-% decision t at allowed foremen to form t eir own unit makes t e áouglas dissent most pertinent !| '-% soug t to c ange industrial p ilosop y.      and t e Board is not now free to read a more restrictive interpretation into t e act.

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  cc   c  conflict b/w all employees (including mgmt. t ere were some t oug t to be so far outside t e act as to make a specific provision unnecessary: ³Labor relations.) and Company stock or bond. Professions directing of less skilled employees in t e interest of t e employer (rejected) *| S. ig er up t e managerial structure s ould also be excluded !| ? e Board ad always previously interpreted t e act to exclude managerial employees. personnel and employment dept¶s.Ct. and confidential employees´ !| ? e Legislative aistory clearly establis ed t at ot ers.olders.If Congress ad intended suc a s ift t en it would ave said so. twice rejected t e Board¶s attempts to define professionals as non-managerial or nonsupervisory in c 2  . 4)| Professionals as Managers/Supervisors *| aealt care and retirement corps. and alt oug t e Senate and Congress could not agree as to exactly w om was covered. and t at construction as been unanimously approved by t e COA¶s À| ? e Board reaffirmed its definition of @anagerial employees on remand: managerial employees are individuals who formulate and effectuate management policies by expressing and making operative the decisions of their employers. !| '-%was a major factor in 3(1%"/.

*| ? eir exercise of suc aut ority is not of a merely routine or clerical nature but requires t e use of independent judgment. ? e Board may t us determine w at scope of discretion qualifies (give 02$ deference). *| ? eir aut ority is eld in t e interest of t e employer. 12 | L a b o r L a w .($(  (murses directing ot ers in t e care of patients are supervisors).02 (professors at pniversity are managerial employees) and c2 "(0 . *| m#   (2001) À| Facts: ? e Board created a categorical exclusion for professionals w ere t ey determined t at t e nurses were not supervisors w ere t ey exercised only ³ordinary professional or tec nical judgment in directing less-skilled employees to deliver services. !| Independent judgment is statutorily ambiguous re t e degree of discretion required for supervisory status.´ À| aolding: ? e nurses were supervisors under t e 3-part test of supervisory status in § 2(11) of t e c + ! ere t e Board¶s contentions contradict bot t e text and structure of t e statute and t e rule in "(0' t at                          „„  À| Reasoning: !| Board¶s 3-Part ?est -Employees are supervisors if: *| ? ey old t e aut ority to engage in any 1 of t e 12 listed supervisory functions.

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!| ? e degree of judgment t at mig t ordinarily be required to conduct a
particular task may be reduced below t e statutory t res old by
detailed orders and regulations issued by t e employer.
!| ? e Board¶s categorical exception turns on factors aving not ing to
do wit t e %, of discretion an employee exercises and would
render t e exclusion superfluous w ere every supervisory decision
must rest on professional or tec nical skill or experience.´
!| Board would only apply t e limitation on ³independent judgment´ to 1
of t e 12 supervisory functions: ³responsibility to direct´²no textual
basis for t is construction.
!| ? e Board as never eld t at a supervisor¶s judgment ceased to be
independent b/c it depended on t e supervisor¶s professional or
tec nical training or experience.
!| W erever an employee exercises one of t e ot er functions w/
judgment t at possesses a sufficient degree of independence t e board
invariably finds supervisory status.
!| "(0'.($( rejected t e Board¶s interpretation of ³in t e
interest of t e employer´ t at was similarly applied only to t e same
supervisory function.
*| Essentially t e same limitation w ere t ey ad argued t at t e
nurse¶s exercise of aut ority was not in t e ³interest of t e
employer´ w ere t ey relied on t eir professional judgment.
!| 3(1("/ c anged t e Board¶s definition of Supervisor to require
only ³responsibility to direct´ instead of ³direction´ + one ot er
function.
!| Board wants to include professional employees w/i t e Act for purpose
of balanced labor policy
*| Policy may be sound but cannot be given effect t roug t is
statutory text
*| Limit t e definition of ³responsibility to direct´ instead to
cover only t ose w o direct employees as opposed to t ose
w o direct t e manner of ot ers¶ performance of discreet tasks.
2%$'(" (1996).
À| áissent (Stevens): S ould ave remanded rat er t an affirm. (W y remand?
W ere t e Court did not seem to make a factual determination as to ³R?á´
rat er it just tried to limit t e application of t e statute)

*| Ê

 a  (2006): Anot er nurse case. Construes t e word ³assign´ as
referring to t e act of 

.

       (e. location.  . or wing).g. dep¶t.

g.      (e. s ift/overtime pd).. or .

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  13 | L a b o r L a w . For direction to be ³responsible. C oosing order is not assigning. ? e decision/effective recommendation of assignments can be a supervisory function.    / to an employee. and prospect of adverse consequences.´ t e person directing                   (adverse consequences? S ow t at t e employer delegated to t e putative supervisor t e aut ority to direct t e work and t e aut ority to take corrective action.) @ust spend a ³substantial portion´ of work time performing t ese functions.

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? e Company refused to bargain in a way t at would affect t e rig ts and obligations under t e individual Ks. etc. or does it give employees individual rig ts? Also. À| ?aft-aartley § 8(d) ³policy of voluntarism´ ± t e duty to bargain does not mean a party as to make concessions or even reac an agreement. w ic was won by t e union. coordinated t e response of trouble-s ooting personnel. terms w/ employees on an individual basis. *| ? e Board eld t e Company ad violated § 8(5).% (@)  DU? OF FAIR REPRESEN?A?ION Exclusive Representation: An Overview À| § 9 (a) provides t at once a union as been selected by a majority of employees in t e bargaining unit. Board determined dispatc ers are    . !| Court¶s created a reciprocal duty of fair representation as an accompaniment to exclusive representation rig ts !| áuty extends to: *| Negotiation of t e CBA. !| Good-fait bargaining obligations also on t e union.broad rsblness) & (2) Administration of the agreement and the handling of individual grievances (0) À| BIG pES?IOm: Are CBAs a series of constraints on employer¶s discretion. grievance and arbitration procedures. Still nonsupervisory after -!% "(0'? ( $/%2'$= $'3"/$('"($. and t at t e Ks 14 | L a b o r L a w .04($ !| Facts: Company ad individual Ks w/ employees. !| Employer may not deal w/ any ot er agent and may not neg.(1999): Power plant dispatc ers ³direct field employees in repairing faults and performing switc ing procedures. offered to negotiate on ot er matters. !| Be avail. !| Once agreement is reac ed. and *| Its administration. t e employer must not unreasonably delay execution. w at is t e remedy and w o is liable. A pnion came into t e picture. !| @ust act in a way t at suggests a serious regard for workers¶ pref. it as excusive aut ority to represent all employees in t e unit²w et er or not t ey are members of t e union. t e union or t e employer? À| . making it t e exclusive bargaining rep of t e employees in question. got t e Board to direct an election. for coll.   m# (1944) .%'(%"$. etc« À| Statutory duty to bargain imposes corollary obligation to meet w/ t e reps of its employees and proceed to negotiate a CBA. set priorities for work requests and orders. Bargaining. for mtgs or ave agents t ere w/ aut ority to bind t e employer in agreements. Duty of Fair Representation (1) Negotiation of Contract (Ê m  .

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) !| Reasoning: Once t e election is won. Collective bargaining results in agreed terms of employment but does not × an Employment K. Bp?. *| After t e CBA. . ours. ?    . not an employment K. A violation of § 8(1). . *| marrow: Employers could not invoke Ks negotiated w/ individual employees as justification for refusing to bargain (or limiting t e scope of bargaining) wit t e majority representative. !| aolding: Individual Ks cannot subtract from collective ones. even w ere t e employees are attempting to extract better terms t an t ose negotiated by t eir exclusive representatives. an employee becomes entitled by virtue of t e Labor Relations Act to all t e benefits of t e CBA (even if e would accept less on is own terms). Court says leave to K law in ot er forums or to labor board if t ey constitute pLPs. employers may not deal directly wit t eir individual employees over wages.  cc   c  ad been utilized to impeded employees in t e exercise of § 7 rig ts. (mot necessarily . *| CBAs usually govern iring and work and pay w/i a bargaining unit. and working conditions. t e individuals under it are identified by iring t em individually. psu. all parties are bound by t e result and must deal wit t e elected representative. . alt oug under some circumstances t ey may add to t em. *| Broad: Absent t e union¶s consent.

        .

³? e fundamental inquiry is 15 | L a b o r L a w . or t ere is no majority w/i t e union.          *| Individually bargained Ks may occur w en individuals continue to work after a CBA expires.  !| Court does not decide w et er an individual can enforce a more advantageous agreement. !| W ere special talents or training (sports & entertainment) require individual bargaining. 1969): Employer must deal wit t e employees t roug t e union $( wit t e pnion t roug t e employees. *| W erever private Ks conflict wit t e Act¶s policies.  À| Direct Dealing. but usually t e better terms are not for t e welfare of t e group and lead to unfair labor practices. and Employer Communications:   !| Direct Dealing: Employers and employees may deal directly wit one ant er Bp? at all times t e CBA must be paramount and t e employer may not undermine t e bargaining power of t e representative. !| In t e entertainment and sports industries. Bargaining Position.  À| Exceptions to the direct-dealing prohibition: !| mo collective bargaining representative !| @atters outside t e scope of or inconsistent wit t e CBA. ? e purpose of t e statute is to supersede terms of separate agreements wit t e terms bargained w/ t e strengt and power of t e w ole group. it is customary for t e labor agreement to set minimum terms w ile allowing t e employer to bargain above t e union scale w/ individual talent. *| m#$ „  (2d Cir. a majority of t e employees refuse to join t e union. t ey must yield or t e Act would be futile. maximums. *| On individuals being able to get better terms: Groups can set minimums.

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´ *| ?     (1989): A management rig ts clause.  cc   c  w et er t e employer as c osen to deal w/ t e pnion t roug t e employees. rat er t an w/ t e employees t roug t e union. (Reversed  4 $ ) *|     . allowing an employer to offer retirement and separation incentives at t eir discretion was lawful.

"% "%¶s proposal deprives t e pnion  ($( of its central statutory role as t eir rep in dealing w/ t e Employer´  !| Employer Communications: § 8 (c) protects t e employers rig ts to communicate its views about labor issues.  # . to employees in a non- coercive fas ion.  (1997): ³By allowing t e employer to bargain directly w/ its employees. *| ‘ . presumably including bargaining proposals.

.

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     (mLRB 1997): Simultaneous communication of offer to union and employees was direct dealing b/c union ad no opportunity to consider t e proposal 1st. *| ‘  .

Finkin says permit employers to insist on joint bargaining among labor groups w/ respect to minimum terms of employment. mo 4". ‘ (1962): ? e c may protect employees w o act in support of a demand t at t e employer meet w/ t eir non- majority labor org. 2001): Employerssolicitation of employee views on a laundry list of issues t at were t e subject of negotiations was an unlawful attempt to ³gain intelligence´ on employees¶ views and to gauge t e level of support for a particular position. *|     (mLRB 1944). !| Proposals ave been offered to amend t e mLRA to mandate collective bargaining w/ nonmajority unions in t e absence of a § 9 representative. (4t Cir.   À| Nonmajority Collective Bargaining: W ere no majority representative. *| . an employer does not violate t e Act by agreeing to negotiate w/ a ³members only´ agreement w/ a labor org. undermining t e union¶s exclusive rig t to perform t ese functions.($ to bargain wit t e union. representing less t an a majority of t e workers in an appropriate pnit. !|     „    (mLRB 1938): An employer does not violate t e c by negotiating a ³members only´ agreement wit a labor org.  *|  remains as to w et er t e act requires employers to bargain wit non-majority labor orgs.  (mLRB 1992): áirect solicitation of employees views as to working conditions and wages was unlawful w ere it is likely to erode union¶s position as employees¶ bargaining rep.  +. . À|       (mLRB 1937): t e Board seems to be consistently saying t at § 8(a)(5): Only a pLP to refuse to bargain collectively wit t e representatives of is employees 4A'(((02$3B:Œ*  À| @aybe only necessary to refrain from disciplining? *| Problem wit mandating collective bargaining wit non-majority groups is t e escalation of bargaining costs for t e employer À| Possible solutions: !| Bargain only wit t e orgs w/ t e most members and t en impose t e agreements on t e ot er groups 16 | L a b o r L a w . representing less t an a majority of t e workers in an appropriate unit. Some argue costs are too ig for firms.

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  cc   c  !| ?o obtain consent of t e minority labor orgs to bargain jointly  À| „        ‘    Ê.

*| People t oug t t e courts would try to integrate ?itle VII into t e mLRA. resolving t e conflict in a way in total tension wit t e model of collective bargaining. ? is leads to little eadway against discriminatory iring practices. À| @aj. t en under § 7 employees may not bargain individually w/ employers over t e terms of employment and must abide by t e grievance procedures designated by t e union. picketed. but would result in a subgroup wit in t e unit to bargain separately. *| Board adopted t e findings t at t e dissident employees were attempting to force t e company to bargain wit t em for t e entire group of minority employees. ? e EEOC would ave to come in. Company fired workers after warnings. !| Reasoning: § 7 rig ts are collective rig ts protected as an instrument of minimizing industrial strife by encouraging collective bargaining. and and billed. promotion patterns. *| Allowing t e employees to bargain wit t e employer as t e representatives of minority employees would undermine t e statute and increase industrial strife w ere t ere may or may not be actual discrimination: À| ? e employer is rarely able to accede to t e demands of multiple minority groups at once²end up setting one group against t e ot er À| áivision would weaken collective bargaining power of groups and t ey would only be able to advance t eir causes t roug serial economic coercion À| ? e CBA does not allow employees to be transferred to lower paying jobs to make room for minority employees. (1975) !| Facts: @inority workers alleging discriminatory working conditions. *| ?rial examiner found no pLP because t e activities were not protected by § 7. ? e EEOC remedy would be to bargain as minority unit. Pickets and signs put up instead of using grievance procedure. Group enforces demands t roug K. @inority t roug economic coercion. and iring practices by áep¶t Store soug t to file grievance wit t e pnion.($ Instead t ey eld t eir own press conference. but t en %'%% $(('"/!(0. !| aolding: Once a union as t e rig t of exclusive representation under § 9(a). *| @inority group w/i a unit are protected from tyranny of t e majority b/c: À| pnion collective bargaining power is confined to ³an appropriate bargaining group´ À| c$% 133$ Amendments ensure transparency and assure t at minority voices are eard À| Congress implicitly imposed on t e unions a áGFR of minorities w/i t e unit *| ? e employees ere seek an exemption from t e principle of exclusive representation. Leads to furt er conflict w/i t e unit. *| COA reversed of t e opinion t at racial discrimination created a ³unique status´ for t e grievance but declined to set aside t e finding t at t e employees ad attempted to bargain individually wit t e employers over t e terms of t eir employment. 17 | L a b o r L a w . *| Principle of @ajority Rule is central to collective bargaining²t e rig ts/interests of some will always be suborned by t e good of t e group.2$''% '(!(0(0 $2(. !| ?itle VII ?ension: Would ave ad t is protection under t e Civil Rig ts Act.

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!| Reasoning: *| ? e   bestowed on t e organization is similar to t at of a legislature and is subject to constitutional limitations. in 0 . *| For t e Black firemen t e aut ority of t e Brot er ood to act for t em comes t roug t e Act and not t roug t eir action or consent. minority members are left wit no means of protecting t eir interests. t e                       "        ‘(e. denied enforcement of $% & "+ but t e doctrine was subsequently adopted by later courts and eventually S. *| W ile t e statutory representative may ave to bargain and make Ks t at are unfavorable to some of its members. ?itle VII is still a problem. A new CBA restricted blacks from serving as firefig ters. nor were t ey noticed of t e new agreement or given t e opportunity to be eard. and yet t e p represented t em. w/o ostile discrimination. not race w ic is irrelevant and invidious). Unfair Representation and the NLRB À| NLRB¶s   . involving statutory rig ts.           and not just t e majority and is to act for and not against t ose w om it represents. !| ? e pnion¶s failure to represent fairly an individual employee or group in t e bargaining unit may be a union pLP in violation of § 8(b)(1)(A). !| ? is rule applies in non-constitutional contexts. discriminatory. in t e CBA) for beginning an extended leave of absence 3 days early. !| aolding: ? e language and purpose of t e RLA expresses t e aim of Congress to impose t e                       .($ "  And 33$($%%? DFR: Early Judicial Development ´| A union breac es its duty of fair representation only w en its conduct toward a member of t e collective bargaining unit s ³arbitrary..  cc   c  *| ? oug t is case stands for exclusivity in t e collective bargaining model. !| 2d Cir. seniority and competence. À|   #  m  (1944) ± 4"'-3$5'" %%3$$40 !| Facts: ? e p (under t e RLA) negotiated a discriminatory CBA w ere t ey soug t to exclude blacks from t e service as firemen and prevent t em from being promoted or attaining seniority. ? e Rep. 18 | L a b o r L a w .Ct. À| Note: W at about EE loyalty and 0$. Blacks could not join t e Brot er ood. or in bad fait .g. w en c osen as t e bargaining representative.´ ´| First emerged from cases w ere t e union itself was involved in racial discrimination. *| ? e Organization. t at t us discriminates may be enjoined form so doing and its members from taking t e benefits of t e discrimination.  Doctrine (1962): Employer dropped employee to bottom of seniority list (not req. on t e Bargaining representative. W/o a      to t e class members.

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t is is sometimes better t an even a good lawsuit. !| Reasoning: ? e -'2  áFR applies to K negotiation Amá administration. discriminatory. so it clearly benefitted t ose pilots. or arbitrary: À| W ile its true t e pnion may ave mad a bad settlement. SJ granted and t en reversed in COA.  cc   c  Contract Negotiation À| ‘# . *| ? is settlement was not irrational. if any. COA ad  . only a breac of áFR. Continental didn¶t ave to take AmY striking pilots. *| ? e COA¶s arbitrariness test (arbitrary b/c left strikers worse off) allowed too muc review of t e settlement. áidn¶t rise to level of invidious ³discrimination´ of t e kind pro ibited by t e áFR. ? e union breac es its duty only w en its conduct toward a member of t e collective bargaining unit is arbitrary. ‘ Ê m  (1991) . Congress did not intend to allow courts to substitute t eir own view of a proper bargain for t e pnion. À| Some form of allocation inevitable. Group of pilots sued pnions alleging arbitrary treatment toward striking pilots. ?/f it was rsbl. !| aolding:Arbitrariness Standard for BáFR---W en t e    of t e bargaining process may constitute   of a breac of duty only if it can be fairly c aracterized as so far outside a wide range of reasonableness t at it is    . or in bad fait . or 3) maintain claims against t e airline and be reinstated only after all t e working and option 1 pilots ad been reinstated. *| Settlement still preserved seniority. w ere t e strikers still ad claims against t e airline²settlement may ave been necessary condition of t e return to work. À| ? ere was no indication t at t e airline would accept bids following a union unilateral return to work. !| mo breac of K. discriminatory. even t oug t e deal may ave only been cut so t at t e pnion could remain in existence. 2) accept severance package. A rational compromise was made. À| Court¶s relations ip to pnions like its relations ip to t e legislature and it must s ow      . t e agreement at least gave t em a c ance. just dictated t e terms of reinstatement. À| 1/3 of t e pilots c ose severance.3$"8$"/2%$'3&3 ‘12 !| Facts: Bitter 2-year strike between ALPA and Continental lead to settlement t at allowed striking pilots to: 1) return to work and submit bids for jobs.

or t e union¶s bargaining position in t e long run? Still a duty to represent t e entire group.. !| ?ENSION: Can t e pnion sacrifice t e interests of some members ( ere 2/3) for t e benefit of ot ers. À| Does a Union Breach Its Duty When It Sacrifices the Interests of Employees in One Bargaining Unit to Serve the Interests of Employees in Other Units? !| ‘. not just t e majority ((").

.

1993): Rodeo plant case.  -  (10t Cir. pnion trying to protect a broader standard of wages across plants but did so by sacrificing t e Rodeo plant employee¶s in a 19 | L a b o r L a w .

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mo BáFR b/c rational activity by t e union to protect workers for competitors¶ wages (did to protect áeere workers¶ wages). *| áovetailing: Put workers toget er wit t e same seniority t ey ad before wit eac company. !| ‘    : Involved different employers.4(/2"($3& !| Facts: @erger b/t Glencoe and Barton. Agreed to drop a pLP against t e employer to keep wages up. and t e pnion is trying to protect t e ig er wages. ? ree options for incorporating Glencoe employees into t e seniority structure: *| Endtailing: Putting Glencoe employees at t e bottom because t ey are considered new employees for Barton. 1976) . Caterpillar¶s union employee¶s were fired and replaced wit non-union workers.  cc   c  confidential side-letter agreement. À|   +# m# (7t Cir. assuming Barton would open a new plant. a new agreement was made w ere t ey switc ed to endtailing and Glencoe employees were laid off.C. G. *| Slot-system seniority. Only 12 Glencoe employees were working. filed pLP against t e union and t e Board reversed t e ALJ finding t at t e switc was largely to advance t e political cause of union official. After plant fell t roug . !| aolding:Seniority decisions may be made wit in a wide range of reasonableness in serving t e interests of t e unit but                    . ? e pnion takes away competition for labor.

+      .

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so t e union must ave a good reason to c ange it. !| Reasoning: ? e  4($("2%$' supported t e Board¶s determination t at t e  . ²arbitrariness violating t e áFR. *| ? e c ange was arbitrary. It¶s not t at seniority rig ts were vested. but t e employee¶s relied on t e first agreement.

? e union is sacrificing its duty to new workers to protect wages of current workers. À| Equal and Principled Democracy as Model for the DFR? Proposed ³objective test´ for breac es of áFR. Create tension. *| ? ere is substantial evidence to support t e Board¶s determination on ot er grounds so must remand. À| m  * . !| %4"(/: W et er t e asserted justification was in fact t e cause of t e p¶s decision.              of t e pnion leaders. *| ?wo-?ier Agreements: Lower wages for new employees. !| &'"2"%(/: pnion decision based on an ³illegitimate asserted purpose---one t at is eit er unlawful or facially inconsistent w/ t e equal respect requirement---violates t e governing norm and must be invalidated. but does not support t at t eir conduct was attributable to t e pnion.

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       Vested retirement rig ts may not be altered w/o t e pensioner¶s consent. ((4 . 20 | L a b o r L a w .0 "( ".  Case: ? e rig ts of G@ retirees were not protected under a court certified settlement class action calling for reductions in retiree¶s ealt benefits.

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W en t e union doctor¶s report was unfavorable.  cc   c  Grievance Procedure À| 0 (1967) . t e GC as complete discretion and wouldn¶t be able to go forward wit out ever aving a earing. ad ig BP.0.04"% +!$(4(($ !| Facts: Owens. wanted to compel Owens arbitration. *| W en you go to t e Board. t e union wouldn¶t go any furt er wit is grievance (b/c t ey t oug t t ey wouldn¶t win).) !| Issue: W et er t e board¶s decision t at t ere is a BáFR gives t e board exclusive aut ority over BáFR claims. union member. *| Files in state court. (áFR created in (". ---? is concern makes t e process an   . Owens ex austed procedure under t e CBA. mot ing in t e mLRA says t e board as exclusive jurisdiction for BFáR claims. court says t ey don¶t ave jurisdiction. !| Reasoning: Assuming $%& " is correct and a BáFR can be an pLP. $% made áFR a pLP---is it t en preempted? Can¶t run to court for a pLP. preempted by t e Board. AF?ER jury verdict.

Enforce CBAs in court.. . *| Relations ip wit § 301 . .

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´| S ould t e union ave t is muc control? Is t ere enoug protection? !| Remedy: pnion can¶t be liable for all damages. says apportion liability. t en t e pnion would represent t e employee! It¶s a morass. not t e individual VS. *| Remedy issue . Employer initially unjustly dismissed t e worker. concern t at t e union will furt er discriminate and not take non-member¶s grievances forward. *| Was it w/i t e union¶s discretion to not go fwd? mo breac of duty.it¶s unfair to old t e union totally liable for all t e arm. À| What does the NLRA create? Rig ts run to t e pnion.more sympat etic to employees. BO?a cut against individual rig ts in employees. discriminatory. *| S.Is t ere a breac of áFR? Arbitrary.    Crazy to make you go to t e mLRB and take t at finding of t e Board to go to court.Ct. or in bad fait . discriminatory. 18). bad fait ? (2) MERI?S . *| Result would over-grieve (policy consideration). It unnecessarily bifurcates t e procedure. Individuals better off in court b/c get to jury . *| Remedy before Board is joint and several (fn. !| Standard: BáFR must be arbitrary. !| Could pay for own atty and take to arbitration yourself (pnion would ave to pay for atty). aOWEVER. CBA are restraints on employer discretion. w y s ould t e union ave all t e liability? @ust allocate b/t union and employer. FRAMEWORK (1) DFR .Is t e grievance meritorious? If t e remedy is to compel arbitration. meed to sue pnion and Employer to get a complete remedy. 21 | L a b o r L a w .

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  cc   c  !| ? e RLA% create individual rig ts and recognizes t em as suc . Railway workers ave t e rig t to pursue own grievances to an adjustment board. plant. A p¶s aut ority to settle a grievance t us requires actual aut ority. granted by t e individual or derived from t e union constitution or custom or usage. industry. À| Idea of arbitrator¶s having specialized knowledge: Knows t e s op. and t e specific CBA. Lync was one and never ad any special-industry knowledge. À| m  * a   ‘     - .

Employer comes back and says no . Is t ere a BáFR? aow does t e union work w/ t ese inevitable conflicts w en it comes to promotions? ?his makes it to a jury. Comes back down to deal w/ áFR.Ct. !| Is t e S. or if t e union caused t e problem by failure to investigate. W o pays damages won¶t get resolved in t is case. Assume t ey are protected by t e employer w o promoted t em in t e first place? But t e employer as a lot of ot er t ings at stake. and senior employees win in arbitration. decides w et er or not t e employer s ould be protected from damages in t is case b/c of t e finality of t e arbitration. In a deposition t e motel clerk confessed to falsifying t e records. ?wo cases . 1980) . Employees lose. says t e employer is still on t e ook for a § 301 breac of K. ³if it seriously undermines t e integrity of t e arbitral process. áidn¶t tell junior employees about arbitration (so t ose employees didn¶t get eard). implying negligence is enoug ? Or not b/c it was about t e employer. pnion grieves. (1976): árivers disc arged for padding motel bills.  "      á- À|  . removes t e bar of t e K¶s finality provisions.( (8t Cir. Employer still wound up on t e ook. ? is case will probably settle b/c employees will get t eir jobs back.+ . Employees try and get counsel to get a re earing accusing t e motel owner of doctoring t e records and pocketing t e overc arges. W o is on t e ook? ? e S. À| Intraunion Division of Interest: (0 2   $ 3. agreement t at one employee be reinstated and one employee¶s disc arge would stand. À| Grievance-swapping‰ megotiating out agreements to settle individual cases.don¶t want to be constrained (ability/skill). ? e drivers sue for breac of K¶s ³just cause´ provision and of t e p¶s áFR. áoes t e decision of t e arbitrator bind t e employees in t is situation? ? e S.Extending -'.pnion goes in saying people s ould be promoted by seniority.bot t e union t inks it would probably lose bot of t em in arbitration. t en promoted based on seniority. not relieved just b/c of t e finality of t e arbitration. Fail.Ct.´ Posted four job openings and went to junior employees. K clause reads ³skill and ability being relatively equal. t ey declared t at a BáFR.Ct. pnion takes to arbitration.

$$0$.0""' !| Facts: Local pnion. operates iring all t roug w ic it refers bot members and nonmembers of t e union for construction work.      #  m 3(1989) . pnion as list of individuals w o wis to be referred to jobs. pursuant to multiemployer CBA. employers contact union for workers and t e union begins at t e top of t e list to fill t e request (unless employer names particular employee).) 22 | L a b o r L a w . (Employer retains rig t to ire outside iring all.

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owever. damages).-' applies and t e reasoning in no way implies t at a áFR action requires a concomitant claim against an employer for breac of K. Can¶t get as good a remedy w/ mLRB t an in Court (back pay vs. it arises independently from t e grant under § 9(a) of t e mLRA of t e union¶s exclusive power to represent all employees in a particular bargaining unit. w ereas ere a suit against t e union need not be accompanied by an allegation t at an employer breac ed t e K.mo breac of a CBA b/c not alleging t at t e employer did anyt ing. since w atever t e employer¶s liability. alleging t e pnion did it. À| ? e situation. ?/f t e  !   over t e BáFR by t e pnion. !| ³? e undoubted broad aut ority of t e union as exclusive bargaining agent in t e negotiation and admin. !| Reasoning: *| Jurisdiction . is different. ?oget er w/ t is aut ority comes t e responsibility to exercise it in a nonarbitrary and nondiscriminatory fas ion. and no L@RáA breac b/c t e referrals are available to union members and nonmembers and refusals to refer are not ³discipline´ w/i t e meaning of t e L@RáA. stating t at t e employee must allege a breac of K to get before a court. BáFR was a necessary component of t e § 301 claim.Ct. *| ? e á. a provision of t e K. Lower courts ad said t is is a § 8(b) violation.? e court rejects t e union¶s argument t at a BáFR s ould be defined in terms of w at is a pLP. and b/c a áFR claim is a separate c/a from any possible suit against t e employer. of a CBA K is accompanied by a responsibility of equal scope. Key is t at t e union is admin. *| ? e COA affirmed. ? e court refuses to narrow w at a BáFR is. 23 | L a b o r L a w . t e employee would still retain a legal claim against t e union. and t e responsibility and áFR. rat er. !| áoesn¶t matter t at t e iring all resembles w at an employer would do. À| A pnion gets status as a board-certified bargaining representative for t e power and ability to refer workers for employment t roug a iring all. À| B/c fed¶l court jurisdiction exists over a áFR claim REGARáLESS of w et er it is accompanied by a breac of K claim. t e court declines to adopt a rule t at exclusive jurisdiction lies w/ t e mLRB.´ !| ? is decision is arguably attributable to c'" >C<+ ( 2  c. *| airing alls ave t e duty of fair representation even t oug t ey are functioning like employers and are providing a service for members and nonmembers alike. À| Problem . of w ic t e mLRB as exclusive jurisdiction. mo § 301 suit ere. In -'. eld t ere was no jurisdiction b/c ³discrimination in iring all referrals constitutes an pLP´ over w ic t e mLRB as exclusive discretion. !| aoldings: *| ? ere is no rule t at exclusive jurisdiction lies w/ t e mLRB over áFR suits w ose ypot etical accompanying claim against t e employer mig t be raised before t e board. *| DFR Claim Merits .  cc   c  *| P alleges t e union breac ed its áFR and violated t e L@RáA by discriminating against im in job referrals (and refused to process is internal union grievances) as a result of is political opposition to t e union¶s leaders ip. À| ? e áFR is not intended to mirror t e contours of § 8(b). w ic limited t e Board¶s aut ority to regulate union iring alls.

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!| á. ³[A] union must operate a iring all w/ µobjective.´ *| Still an open question. (2) w et er t e internal union appeals procedures would be inadequate to reactivate t e grievance or to get full relief.¶ w/o discrimination.´ Courts ave discretion on t is issue considering t ree factors: (1) w et er union officials are so ostile to t e employee t at e couldn¶t get a fair earing on is claim. !|     #   " ("" 2  ( (1983): six mont S/L for ³ ybrid § 301 suits´ suc as -' and $. Procedural Aspects of DFR Suits !| „%    . (3) w et er ex austion would unrsbly delay t e employee¶s opportunity to obtain a judicial earing on t e merits of is claim.¶´ but one unintentional act of maladministration does not contravene ³ eig tened duty standard. and w/o µcausing or attempting to cause an employer to discriminate against an employee.       . "/($ 2  $($()" $$+ $(% (4" - (1981): not required to ex aust internal union remedies ³w ere an internal union appeals procedure cannot result in reactivation of t e employee¶s grievanceor an award of t e complete relief soug t in is § 301 suit. Mere negligence in the hiring hall context does not violate the DFR.  cc   c  !| Negligence: $(%((2 !$ áIC?A. consistent standards.

. but no punitive damages. Can recover compensatory damages and demand a jury trial. !| ‘   á.

w ic constrain discretion of employer. *| Creates jurisdiction but w at about fed¶l question? mo EXPLICI? aut orization from Congress to do so. Implied? 24 | L a b o r L a w . rig ts to get promoted. problems re: suing unions (b/c don¶t ave particular citizens ip). ENFORCEMEN? OF COLLEC?IVE AGREEMEN?S ?he Duty to Arbitrate pnions certified as exclusive rep of workers. pnion as entity and fed¶l courts ave jurisdiction to ear cases to enforce arbitration. Also. want to endorse arbitration clauses and no-strike clauses. meed a met od of creating jurisdiction. !| pntil 1947. ? en enter into CBAs.  W en employee successfully sues employer and union. creating expectations for employees for ow t ey are going to be treated. series of clauses t at protect employees from unjust disc arge/discipline. ?aft-aartley Act fixes in § 301(b). !| uestion now: aow does t is obligation to arbitrate under CBA get enforced? áoes it ave as a counterpart t at t e union agrees not to strike? !| For industrial peace. !$--' standard. Protecting rig ts/expectations is processed by t e union protecting t e employees t roug t e grievance process. In process. we ave duty to make sure union exercises due care (áFR). allocation of damages is required.

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c 
À| ? %  
#  

‘(1957) - A %'"$3'$(34(($
!| Facts: CBA agreed no strikes or work stoppages and specific grievance
procedure (leading up to arbitration). Employer refused to go to arbitration
and t e union seeks to compel.
*| á.Ct. ordered t e employer to comply.
*| COA reversed olding t at alt oug t e court ad jurisdiction, t ey
did not ave aut ority to grant t e relief.
!| aolding: ? e fed¶l courts may issue injunctions to compel arbitration under § 301 fed¶l
common law (labor policy driven now) b/c m-L antiinjunction provision was aimed at union
breaking and not compulsion of peaceful settlement of labor disputes.
!| Reasoning:
*| · 301 of the LMRA -
À| 301(b) makes it possible for a labor org. (as an entity.to sue and be sued in
fed¶l courts. 301(a) supplies basis for jurisdiction and apply t e procedural
rule of 301(b).
À| Issue is w et er 301(a) is more t an jurisdictional.
À| ? e agreement to arbitrate was plainly a quid pro quo for t e no strike clause
À| Act expresses fed¶l policy t at fed¶l courts s ould enforce CBAs for industrial
peace. It would undercut t e act and defeat its policy if read 301 too narrowly
as only conferring jurisdiction.
*| Substantive law of · 301(a) - L@RA says w at t e parties may or may not do in
certain situations. Courts s ould fas ion remedies by looking at t e policy of t e
legislation for parts t at lack express statutory mandates. ? is is fed¶l law, not state
law.
À| Creates fed¶l question jurisdiction. Fed¶l common law re: enforcement of
CBAs.
*| Norris-LaGuardia -§ 7 did not wit draw Jd. to compel arbitration of grievances.Stiff
procedural requirements for injunctionsin labor disputes---must be serious t reat of
violence(fed¶l courts breaking back of union efforts to organize by issuing
injunctions/?ROsin labor disputes by using antitrust laws). ? e failure to arbitrate
owever was not part of t e abuses t e Act was aimed, t/f noreason to apply t e
procedural requirements for enforcing CBAs.

À| Evolution of a fed¶l common law. Body of principles of K interpretation of CBAs independent
(alt oug borrowing from) state law. Creates a c/a arising under fed¶l law in t e form of fed¶l
common law.

À| Scope of · 301 Jurisdiction
!| $' $( %'($: State courts ave concurrent jurisdiction but must apply fed¶l law.
!|  ( 4/ $%2% " 
"/: Can sue in fed¶l courts over individual rig ts, but must
ex aust contractual grievance arbitration remedies.
!|  ( $, $% $$ $(( ($: A union constitution is a K b/t labor orgs. ?/f a
local union can sue parent union under § 301.
÷  




À|      

‘‘

P seeking to compel 25 | L a b o r L a w .  (1960) ² You must Arbitrate! !| Facts: P just got partial disability and now wants to go back to work (basis for claim of disability is t at you can¶t do t e work!).

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[or for] lack of work. . *| á. Employer defended on t e grounds t at: (1) P is estopped b/c ad a few days previously settled a worker¶s comp claim against e company (permanently partially disabled).´ Seniority provision said t at employer wouldemploy and promote employees ³w ere ability and efficiency are equal. !| Reasoning: Courts ave no business weig ing t e merits of t e grievance because t e agreement was to submit cc claims to arbitration not just t ose t e courts deem meritorious. could disc arge any employee for cause. and s ould go to arbitrationwit out regard to merits of t e claim. !| aolding: ? e dispute was to t e ³meaning.affirmed b/c frivolous suit. *| CBA said mgmt. (2) P not p ysically able to do t e work.estopped (permanent partial disability).´ *| P left work due to injury and sued for compensation benefits. (3) P¶s claim not arbitrable under t e CBA. Settled case w/ Ps¶ p ysician saying e was 25% disabled. .Ct. ? e policy of t e L@RA can only be carried out if means of settlement are fully carried out. and application´ of t e CBA.Common law of t e s op t at arbitrators are better equipped to entertain and t e arbitrator¶s judgment is bargained for. ?  mÊ %   4  5    /         .  cc   c  employer to arbitration. CBA requires arbitration of claims t at courts may be unwilling to entertain. including ³reason t at would tend to reduce or impair t e efficiency of plant operation . interpretation.COA . ?wo weeks later filed grievance for seniority provision. .

keeps courts out of it). Cites t erapeutic values of claims going to arbitrator (employees voice is eard. even contracting t e same work to laid-off EE¶s at cut-rate wages. good for workplace. À|      ‘  $ m  (1960) !| Facts: CBA b/t barge maintenance workers and employer w/ ³no strike´ and ³no lockout provisions (employer can¶t lockout employees during term of CBA in order to bring pressure on t em for somet ing employer wants). But t ere was a strong . Employer laid-off alf t e union workers and contracted out t eir jobs.    . EE¶s alleged violation of no lockout clause by partial lockout.

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t/f a dispute as to t e meaning of t e provision of t e agreement. @ajor factor in t is is t e provision for arbitration of grievances. dismissed b/c said t e agreement did not give arbitrator rig t to review t e á¶s business judgment in contracting out work. *| ? e question of an arbitrator¶s substantive jurisdiction is for t e courts to decide (w/ a presumption in favor of arbitrability). Arbitration = substitute for industrial strife in t e Labor context w ereas in t e commercial context it is merely t e substitute for litigation.Ct. *| Fed¶l policy is to promote industrial peace t roug CBAs. s all not be subject to arbitration under t is section´). 26 | L a b o r L a w . !| Reasoning: ? e court  ( interpret t e mgmt. Warrior refused arbitration. w ic must be determined by arbitration. ? ere was. 24±5). *| COA affirmed b/c mgmt. Citing c$'"$"" (p. rig ts clause. function exception to arbitration. CBA said strict mgmt functions not subject to arbitration. w ic is strictly a function of mgmt. !| aolding:Only t e most forceful evidence of a purpose to exclude t e claim from arbitration can prevail (particularly w ere t e exclusion clause is vague and t e arbitration clause broad). and not limited by t e CBA.   (³matters w ic are strictly a function of mgmt. *| á.

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Can fas ion rules for t e particular industry or plant. part of t e continuous bargaining process. *| ·(7&. *| Grievance is t e terminal point for a disagreement. It is a generalized code to govern cases t at can¶t be anticipated in t e employment relations ip.  cc   c  *| ‘       6           It covers t e w ole employment relations ip and states t e rig ts and duties of t e parties. Arbitrators are c osen by agreement b/c of t eir special knowledge and t eir trust in is personal judgment.

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But inquiry must be confined to w et er t e party did agree to arbitrate or did agree to give t e arbitrator t e power to make t e award e made (unless agreement CLEARLY says arbitrator s ould do t is as well). À| Parties may expressly agree to resort to economic warfare rat er t an to mediation. (p. $# !0$2  '"  ( $((($ 3 2$ 0. Let arbitrators write in common law of t e s op. .0"/5"'("$.  "3 2 + $% $( 0" . arbitration.  ( 4 $((% Œ . If parties don¶t like it.@@*   ( "2 (0 % $ 3 0. À| 2$ 5"'( "$. Arbitration not truly precedent. But can¶t write everyt ing down.Form/system of industrial self-gov¶t. but 27 | L a b o r L a w . complete control and unfettered discretion. but t e statutedoes not favor suc an agreement. but like it.! "%02(. b/c if ambiguous.Court is to determine substantive arbitrability (w/ presumption for arbitrability) but w at about procedural? áetermination of w et er procedural prerequisites to arbitration set fort in t e labor agreement ave been met. ³We agree frivolous grievances cannot go to arbitration´ to invite courts to review? Efforts to K around arbitrability are not easy to do. (áespite policy of t e Act and basis for presumption for arbitration). !| : áoes t e arbitrability effect w at t e arbitrator t en does w/ t e merits of t e case? Can t e CBA say. . À| ³Procedural Arbitrability´ . Reflections Upon Labor Arbitration (cited in case) . *| If t e award was wit in t e aut ority conferred upon t e arbitrator by t e agreement t en it is final and binding À| Cox. (34(($ *| ³Strictly a function of mgmt. not well received by t e courts. Presumption of arbitrability = áoubts s ould be resolved in t e favor of coverage. ² Customary to go to t e arbitrator. 29) form t e ³steelworkers¶ trilogy´²all 3 were decided on t e same day by t e Court: !| aands off attitude of t e courts toward arbitrable disputes also extend to t e scope of judicial review afforded to arbitration awards !| ? e merits of eit er t e grievance or t e arbitration award are irrelevant w en a federal court is asked to enforce an arbitration agreement or an award t ere under *| Judicial review is limited to w et er t e award ³draws its essence´ from t e collective agreement.(4(($ %(%3('"  (0(""/-(0$.0"/ 5"'( '"  ( - 3 4(($  ("" 2. À| ?he ?rilogy:   3. or judicial review. !| Concurrence: Courts¶ inquiry s ould go broader. + !0(   4'$('($. t e court will send to arbitration. #  .´ must mean t at over w ic t e K give mgmt.           . @ust do explicitly enoug . w ere parties on ongoing basis working toget er to develop rules to govern t e workplace. t ey can always bargain around it.

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($ (1964): Court eld t is determination s ould be      . bargained for provision. À| # -. ? ey do so by applying t e presumption of arbitrability. didn¶t like t at t e majority vested in arbitrators t e istoric jurisdiction of t e courts to determine fraud/duress in t e $'($ of a K. $. !| Procedural: ave you gone t roug all steps of grievance process. are t ere any ot er K requirements to get to arbitration? !| 0$"/ . *| Powell.. *| Court has · 301 authority to decide if employer breaching K by not going to arbitration.$2 c2$. t enit may go to t e courts !| Substantive: is t e substance of t e issue itself subject to arbitration. and separating t e procedural from t e substantive creates opportunity for deliberate or well-intentioned delay.? e procedural questions grow out of t e dispute and bear on its final disposition-- -always involves t e arbitrator interpreting t e K.$ c'" C 2  &"  "% (1972): ? e arbitrator s ould resolve t e employer¶s claim t at a union demand to arbitrate was barred by lac es b/c t e union ad not demanded arbitration for 3 yrs after t e alleged breac . !| ($.  cc   c  watc out ² If t e procedural requirements are a substantive. dissenting.

interfering w/ rig ts in section 7) and (5 . t e construction to be placed on any clause or clauses of t e Agreement s all be determined by arbitration in t e manner ereinafter set fort . Ordered limited grievance procedure w/ backpay remedy. 1979.Bp? said dispute arose after t e K ad expired and no indication t at t e parties contemplated t at suc rig ts could ripen or remain enforceable after t e K expired. so must arbitrate.refusing to bargain . lengt s of continuous service will be t e determining factor if ot er t ings suc as aptitude and ability are equal.Broad arbitration provision = ³áifferences Grieved Employee t at may arise b/t t e parties ereto regarding t is Agreement and any alleged violations of t e | 111 Agreement. *| mLRB found t at O ad duty to bargain and violated § 8(a) by refusing to do so. *| pnion filed grievances for breac of K providing t at ³in case of layoffs.$. . Also said violated §§ 8(1 . !| aolding: A post-expiration grievance can be said to arise under t e K only w ere it                   %  .á m#(1991) . must bargain over effects of layoffs) for unilaterally abandoning grievance procedure.´áispute over board certification(if de-certified. laid off ten employees w/o notice to t e union (included six of t e eleven most senior employees).´ Owner refused to arbitrate at all. *| COA said t e dispute did arise under t e Agreement. . w ere an action taken after expiration . employer no longer as to bargain but pnion wins by 1 vote) - Owner tested certification by refusing to bargain to get it up on appeal±A year after exp. $%(08 !| Facts: C eck printing plant owner entered into CBA set to remain in effect until October 3.

  .

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or w ere. under normal principles of K interpretation (appears to mean if t e parties w en t ey do post-expiration bargaining appear to be treating t e K as continuing .implied duty to arbitrate and no-strike clauses). t e disputed    .  .

*| ?he layoff provision here does not arise under the K. !| Reasoning: 28 | L a b o r L a w .    %   of t e remainder of t e agreement.

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employer unilaterally c anges an existing term/condition of employment. do not survive expiration of t e K (union security and dues c eck-off provisions & no-strike clauses). À| CBA can eliminate any iatus b/t agreements/remain in effect until bargaining. Also applies w en existing agreement as expired and negotiations on a new one aven¶t been completed. w/o bargaining or impasse. it is by agreement. *| "%: Severence-pay and vacation-pay case. owever.  cc   c  *| pLP if. *| "($: arbitration clauses are excluded from t e pro ibition on unilateral c anges b/c arbitration is no compulsory.Ct says t ose rig ts are like vested rig ts. . . ?           . À| Parties can consent to post-expiration arbitration. Some terms. S. presumption in favor of post-expiration arbitration of matters pmLESS ³negated expressly or by clear implication´ .

     .

   À| $)(%'%(( (3(08 $"/ $(((08D *| W et er or not a company is bound to arbitrate. as well as w at issues it must arbitrate. and a party cannot be forced to arbitrate t e arbitrability issue. is a matter to be determined by t e court. *| #          /            +   .

    +      .

but t is is not before t e court. !| áissent (@ars all): It isn¶t t e seniority rank or t e rig t to job security t at vests.33'( ($3(0()$($( !| Facts: CBA provided t at any differences as to t e meaning and application of t e CBA s ould be submitted to arbitration. À| 6 Years from ALJ to mLRB?: Board can use § 10(j) to get injunction to stop t e employer from pLPs. t at t e employee as been suspended unjustly or disc arged in violation of t e provisions of t is Agreement. Arbitration agreement and provision stating ³[s] ould it be determined by t e Company or by an arbitrator . !| W at appened to t e presumption of arbitrability? W y invite courts to determine t e issue of arbitrability? À| W olesale Repudiation? if an employer is willing to arbitrate post-expiration grievances t at it judges to be arbitrable under t e c(($ standards.        8         À| Fm 4 . .´ Employees were fired and it went to arbitration. . . ? is is a rig t under t e K. t e Company s all reinstate t e employee and pay full compensation at t e employee¶s regular rate of pay for t e time lost. CBA expired before it went to arbitration. . but 29 | L a b o r L a w . *| Arbitrator found t at t e disc arge was not justified t oug t eir conduct was improper (only warranted suspension). .pnion could argue t at in practice t e failure to lay off in inverse order of seniority if aptitude/ability were equal amounted to an pLP as unilateral c ange. but t e rig t to ave t e ($%% of seniority applied to layoffs. Judicial Review of Arbitration Awards À|      ‘ „    (1960) .

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and reinstatement unenforceable b/c CBA expired. *| COA eld t ere were defects in t e award ( ow muc deducted is too vague). !| aolding:   overrule an arbitration award if it can  be interpreted as coming out of t e CBA itself. no back pay can be awarded after t e CBA expired.  cc   c  arbitrator eld t at t at provision above imposed an unconditional obligation on t e employer. ñ ñ|| | . Employer refused to comply. *| Arbitrator awarded reinstatement w/ back pay minus 10-day suspension and sums received by t e employees t roug ot er employment.

 (" -+ '($.0( D 30 | L a b o r L a w .(( "('$($(04(( À| Circuit courts use language from t e opinion to find an implausible interpretation of a CBA as been decided and ence reflects t e arbitrator¶s ³brand of industrial justice. or (4) it is based on general considerations of fairness instead of t e exact terms of t e agreement. *| Arbitrators need flexibility to deal wit situations t e draftsman of t e CBA could not ave anticipated *| aowever t ey are confined to interpretation and application of(0. +"/!%4"(/+(( (/% (/(%''%($+ 4 (2"(  . it merely disagreed wit is construction of t e K *| ? e EE¶r¶s proposed reading would require t e courts to review t e merits of every construction of t e K.( ' ( $%("-@*   $)( %('($%2% ".( 5($" "! !$. Respect  of arbitration.  (  ( $(. À| 4(( (A (' '0(0$$$(3(0  +(0$' (!"" $(0 "% $( 2  0  '$($( ! (0 &  Œ' ( 0 "% $( 2( $4(()5'($$($'34+3 %* *| Arbitrator¶s opinion was ambiguous (was it based on legislation or on t e CBA?)Bp? t at¶s not a reason for refusing to enforce t e award. (0 = ($ 3 !0(0 (0 "/ (.0(+4 ((( (/.´ À| 8 $%1 $"!/$. and destroy finality of t e arbitration. t e courts ave no business overruling im b/c t eir interpretation of t e K is different from is.2$''%$. *| ³It is t e arbitrator¶s construction w ic was bargained for.0(3$(0"/ (0(0E$'F3(0  02/  .0. !| 0(4 (5($""!@ .0(Œ'$(0/A (.(0 . (2) imposes add¶l requirements not expressly provided for in t e agreement. even under t e standard arbitration K.$  (%  !0( 3 4(( . (3) not rationally supported by or derived from t e agreement.(('((0. | !| Reasoning: *| aolding reflects fed¶l policy of settling labor disputes by arbitration.( 5($""!$((0%'$ !|  $%     $'($.´ Sixth Cir. refuses to enforce an award w en: (1) conflicts w/ express terms. À| It is not apparent t at e went beyond t e submission and t ere is no reason to assume t at e abused t e trust of t e parties À| ? e COA¶s opinion was not based upon any finding t at t e arbitrator did not premise is award on t is construction of t e contract. and so far as t e arbitrator¶s decision concerns construction of t e K.$( and ? e award is legitimate only so long as it draws from t e CBA.

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arbitrator as incentive to protect employability. S. suspension. À| '‰Worked w/ s arp blades. aad @J in ouse away from work during police searc . ? e award is consistent w/ re abilitative concerns and fits t e regulation¶s requirements.´ ³well defined.Ct. Will split t e baby w en t ey can to preserve t eir track record.Ct. ? e regulations also point to policy against interfering w/ labor- management agreements re: appropriate discipline. t/f t e arbitrator¶s award is enforceable. t e grievant went out to cars in parking lot. t at courts¶ aut ority to invoke t e public policy exception is not limited solely to instances 31 | L a b o r L a w . reversed. explicit  4"' "'/ '$%($ *| Facts: CBA says employer can fire for ³just cause. in principle.´ ³well defined. !| W ere 2 political bodies ave created a detailed regulatory sc eme t e courts s ould approac wit caution pleas to divine furt er public policy in t at area.  cc   c  À| Judge aays¶ indictment of arbitration: @any cases aren¶t decided by t e K ---. t e appropriate remedy is to remand t e case for furt er arbitration proceedings. Employer found im in t e parking lot in car in company property. said you bargained for arbitrator to decide these issues. À| ? ere is no regulation t at says 2x mandates disc arge. ae tested positive for @J 2x but bot times t e arbitrator said no ³just cause´ b/c employee was good employee for 17 yrs and said it was a one-time t ing. etc. Arbitrator says not enoug proof it was is. c"/) )$2 2/(2001). áuring evening. . bring in outside factors suc as t e ³common law of t e plant´. (3) participate in drug program. Ct wants express language. sitting in back seat and joint still smoking was in front seat.´ Employee truck driver operated ve icle on public wys and ad to be drug tested.´ and ³dominant´ public policy against enforcing reinstatement of twice-failed drug testers from running eavy mac inery.´ and ³dominant. ae was fired. (2) reimbursement for bot arbitration proceedings.will not infer a public policy to go beyond t e already detailed and careful sc eme created by t e ot er branc es. á. À| Employer claims award is against public policy against operation of dangerous mac inery by workers w o test positive for drugs. *| Reasoning: À| ? e court must assume t at t e CBA itself calls for t e employee¶s reinstatement. *| Concurrence (Scalia): ? e court leaves a crack²³we agree. and many are unqualified or lacking in c aracter. Arbitrator ordered reinstatement and provided (1) unpaid 3 mo. À| Public Policy Considerations !| „  ‘           (2000) ±clear. À| Employer argues áO? and ?esting Act s ow t is policy Bp? Act also provides t at ³re abilitation is a critical component of any testing program . ? en must decide w et er falls into legal exception making a CBA unenforceable b/c contrary to public policy. À| Even w en t e arbitrator¶s award may properly be vacated. (5) signed. '.´ Must come from laws and legal precedent. . (4) random drug tests. undated letter of resignation if positive test in next 5 yrs. *| aolding: ? ere is no ³explicit. À| Such a policy must be ³explicit.

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No-Strike Obligations À| W at do you do w/ a broad arbitration clause (must go to arbitration) and a narrow/limited no- strike clause: ³the employees agree not to strike when the agreement is in arbitration. t ere s all be no suspension of work´ but did not expressly bar midterm strikes. t at t e award @pS? violate positive law.  cc   c  w ere t e arbitration award itself violates positive law.´ ?rying to preserve rig t to strike to enforce rig ts. ? e Court eld t at t ere was an      .´ ae t inks t e court s ould be clearer. áoes t e union ave t e c oice to do one or t e ot er? À| ( 2  c ' &"  (1962): CBA contained arbitration clause providing t at ³during suc arbitration.

Ct. state court issued ?RO. . or ot er equitable relief. marrow olding t at Fed¶l courts @AmáA?ORY! may issue injunctions. State courts are not constrained by t e m-L Act (Bp? first t ing pnion will do is remove to fed¶l courts). áecided t ere would be fed¶l common law to interpret CBAs. À| Strange argument t at Congress didn¶t intend to do somet ing as justification t at no-strike clauses and arbitration clauses -. Employer filed for ?ROand injunctions. t en decided b/c fed¶l CL could remove from state court to fed¶l court (if you were t e union).  and up eld a judgment for damages caused by a strike. 32 | L a b o r L a w . À|    +. *| á      !| Reasoning: *| c$'"$ "": Apply federal law. union eld strike and boycott anyway.     (1970) ² State Courts and Fed. removed under § 1441) and so t e employer moved to compel arbitration. w ic t e courts must fas ion from t e policy of our national labor laws to § 301 (a) suits. are pro ibited from issuing injunctionsby t e m-L Act. !| Black. dissenting.we can enjoin. @ay enjoin strikes !| NO LOSS OF CONCURREN? JURISDICI?ION !| · 4 of the Norris-LaGuardia Act . w en state courts are not. assumed concurrent jurisdiction in state courts.dilemma now for t e S.model of duty to arbitrate and quid pro quo implied no strike clause. !| aolding:Overruled $'". !| Issue: W et er fed¶l courts. Congress did not intend for t at to appen. says court c anged t e nature of t e K by adding new promises t at t e parties t emselves refused to make to better fit into t e public policies t e court believed to be so important. after removal of a § 301 action. !| Facts: Frozen food packagers and employer ad no-strike provision and broad arbitration provision. to stop illegal strikes in cases involving mandatory arbitration clauses in t e CBA. aow do courts get around m-L to issue an injunction to stop a work strike in a labor dispute? *| Congress enacted § 301. After dispute over pnion work done by non-pnion supervisors and staff. pnion t en moved to fed¶l court (fed¶l  jurisdiction under § 301.

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*| 0" !% 5  : Congress clearly intended not to disturb t e preexisting jurisdiction of t e state courts over CBA violations. strife. À| Bp? § 301(a) was meant to  "$((as an alternative) and not encroac upon t e preexisting jurisdiction of t e state courts. *| Extend $'" so t at state courts can¶t issue injunctions eit er? (1) Congress never tried to do t is in m-L A or § 301. *| meed uniformity in t e labor laws and t is was unintended function of removal. *|   . not t e deprivation of state court¶s injunction power. ás will always remove to fed¶l court if feds can¶t issue injunctions.´ áamages aren¶t an adequate remedy and would aggravate ind. *| c '&" : up eld State court dmg¶s award to EE¶r for violation of no-strike clause (not an injunction) *| ? e effect of 2' (t at state §301 cases can be removed to fed¶l court) was t at it ousted state courts of t eir jurisdiction in suits involving injunctive relief for breac of a no-strike obligation. (2) would ave ³devastating implications for t e enforceability of arbitration agreements and t eir accompanying no-strike obligations./: emp asized t e importance of arbitration and cautioned t e lower courts against usurping t e functions of t e arbitrator.  cc   c  À| pnion could obtain specific performance of EE¶r¶s duty to arbitrate *| ("!-) ".

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irreparable injury?. *| Guidance for injunctions adopted from dissent in $'":NO injunctions despite N- L unless: (1) parties contractually bound to arbitrate in the K AND (2) the employer should be ordered to arbitrate as a condition of obtaining an injunction against the strike. áon¶t need injunctions to enforce t e K (t eir effectiveness doesn¶t matter for t e interpretation of t e law). a fed ct. À| W et er injunctions warranted depends on ³ordinary principles of equity´--- w et er breac es occur/continue/will appen. À| áo c '&" and /)-(meant t at even in t e absence of an express no-strike provision.´ ? us t e task of courts to accommodate t e older law wit t e newer law as not to impede t e mEW congressional policy. suffer more from t e denial of t e injunction t an from its issuance. !| áissent (Black): SOP argument. : S ift from protecting labor movement (reason for m-L injunction pro ibtion) now to t e ³encouragement of CBA and to administrative tec niques for t e peaceful resolution of industrial disputes. Involves political and economic interests. t reats to breac . may enjoin a strike over a dispute t at a CBA states s all be exclusively resolved by arbitration?(!/ "2 $(% $-(1974) says YES À|   - . Congress asn¶t c anged t e law even t oug t ey¶ve ad t e opportunity.

P&@ engages in sympat y work stoppage during bargaining of t e O&? employees.) *| Interpretation of t e no-strike clause is arbitrable. but t e dispute is over striking in sympat y for Ees w o do not yet ave a CBA.       ‘  (1976) . !| aolding: *| ? e underlying dispute must be a dispute subject to arbitration. ? e dispute isn¶t over t e interpretation an arbitrable issue b/w P&@ EE¶s and EE¶r./(0/(-1$$A $'($ !| Facts: pnion represents P&@ but not O&? yet. /-( 33 | L a b o r L a w . (O&? employees are legally striking for t eir own CBA. Was t e no-strike clause meant to include sympat y strikes.

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  cc   c  *| If a court issued an injunction relating to    .

but generally agree t at w en normal equitable standards are met.| ?rilogy . Courts ave split. and issue injunctions on any arbitrable issue²not w at t e parties bargained for. 2 Principles out of these cases: 1. ? e ("!-)". fulfills a role e never ad.´ c2 À| Political Boycotts and the Norris-LaGuardia Act !| Carter imposed an embargo on grain s ipments to t e Soviet pnions. In t is case. or arguably a vested rig t.         . !| But questions remain w ere statutory obligations depend on t e meaning of t e K. not for t e court. Arbitration and Unfair Labor Practice Charges Under the NLRA À| ? e mLRB¶s aut ority over disputes raising K issues: Board cannot adjudicate CBAs and adjudicators cannot enforce t e mLRA. can still be required to take it to arbitration. But t e union did not evade its duty to arbitrate. áoes m-L permit injunction against an employer from altering t e status quo until an arbitrator decides w et er t e employer as t e aut ority to do it. !|    ?  ?est: w et er t e employer-employee relations ip is t e matrix of t e controversy. employer-employee relations ip is t e matrix of t e controversy. still a presumption of a continuing duty to arbitrate. If employer won¶t go to arbitration or w/o seeking arbitration. And t e strike ad neit er t e purpose or effect of denying or evading an obligaton ot arbitrate. t e court can only do t at by interpreting t e no-strike clause. injunctions are appropriate w ere ³necessary to prevent conduct by t e party enjoined from rendering t e arbitral process a ollow formality´ b/c w/o t e injunction in suc circumstances an ³arbitral award w en rendered could not return t e parties substantially to t e status quo ante. ?/f it was not subject ot arbitration. 34 | L a b o r L a w . pnions decided not to load any cargo onto Soviet s ips b/c of treatment of Afg anis. As long as dispute arises under t e K. À| Reverse    Injunctions. *| Injunctions interfere w/ t e arbitrator¶s pending decision: if t e court can enjoin t is strike pending arbitration it could old earings. make findings of fact.| N-L doesn¶t stop courts from issuing injunctions if the underlying dispute arbitrable and duty to arbitrate. t e employer and t e union are t e disputants and t eir dispute concerns t e interpretation of t e CBA. given t e ineffectiveness of dmg¶s remedy. ? us. c '&" ./ olds t at    . can t e pnion strike b/c no-strike clause expires w/ t e K.not role of the courts to interpret the CBA so also won¶t get involved in interpreting the no-strike clause. morris-L applies and can¶t get an injunction. !| Reasoning:/-( is distinguis ed b/c t e strike was not over any dispute b/t t e pnion and t e employer. *| ? is was a dispute over an interpretation of t e no-strike clause. interpret t e applicable provisions of t e CBA. or w ere t e meaning of a provision of t e K may depend on mLRA interpretation. 2. t e union wants to pressure t e employer. À| If dispute arises under t e K. !| áissent (Stevens):Issuing an interim injunction does not oust t e arbitrator but.

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t ese cases really were CBA interpretation. Lync . dispute over w et er arbitration s ould be compelled per t e CBA b/c t e EE¶r claimed t is was a representational issue under § 10(k) aut ority of t e Board.0  (1964): W ere union claimed EE¶r ad assigned work to members of anot er union.W at if arbitrator¶s award is inconsistent w/ repugnant to statutory rig ts of t e employee? !| Is t e Board abdicating its responsibility to determine statutory rig ts by forcing t e parties to use arbitration? !| Early cases were § 8(a)(5) issues: W ere employer unilaterally c anges (employer duty to bargain) working conditions in some way during t e term of t e agreement on a topic not totally covered by t e agreement. "/!% (1967):  !| '$% ("‰ À| Email hypo: aow far can employer go regulating employee¶s use of employer e-mail? Permits personal use but won¶t allow communication re issues relating to union activity.  cc   c  !| In Eit er case. discrimination). or ave to c oose? À| Concurrent Jurisdiction . factual determinations may be necessary t at would ordinarily be made by an arbitrator or t e Board²so s ould t e parties be able to sue for relief in bot .statutory (mLRA) issues and individual rig ts. [Also arguably violation of t e CBA. !| /2 ($. 8(a)(1) and 8(a)(3) are really muc more complicated (interfering w/ union activity. Arbitrator looks at in context of CBA.  under deferral doctrine becomes: S ould t e c arge not be filed under t e Board forcing t e union and t e employee take t e dispute to t e arbitrator in t e first instance? !| After Arbitration . Pre-Arbitral or ³Collyer´ Deferral À|  ?   .] *| Were deferring to t e arbitrators. Court said t at in (0case arbitration under t e policey of § 301 was apporpriate !| . Violation of § 8(a)(3). depending on interpretation of t e CBA. w et er t e employer ad t e aut ority to make t e c ange. mLRB looks at in context of w et er discriminatory.

!| Reasoning: Parties agreed to resolve disputes t roug mac inery in t e CBA. pnion presses for two steps in grievance process and drops it w/o prejudice. or repugnant to t e policies of t e act. Employer wanted it dropped w/ prejudice. !| áissent: áisputes b/t pnion and employer are best andled by arbitrator. s ouldn¶t defer. but disputes b/t t e employee and t e union/employer. *| S ould t e board defer t is issue back to arbitration (w en t e pnion as dropped t e grievance)? !| aolding: áefer! Review award if fails to meet Spielberg. !| Is after-t e-fact review of ³repugnant to t e Act´ sufficient? 35 | L a b o r L a w . b/c need to protect individual statutory rig ts.   (1984) ±áefer and reinstate ""/ !| Issue: w et er t e Board as discretion to delegate decision-making aut ority to t e private dispute resolution process c osen by t e parties in CBAs. !| Facts: Employees accuse employer of t reatening t em if t ey took t eir grievance to t e next step in t e CBA process.

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Union can¶t waive (1) substantive right or (2) right to go to court.  cc   c  À| Ê  (1984) . and were ot erwise less desirable t an t eir former positions. . Unless the award is ³palpable wrong. mo waiver w en K at issue provided for arbitration of ³matters under dispute´ and did not explicitly incorporate statutory antidiscrimination requirements.3$'1'- (' !| Facts: Sick out w ere 43 employees left work. as condition of employment (nonunion setting). slowdown. ? e pnion dropped t eir 36 | L a b o r L a w . !| Dissent: ? inks t is is an expansion of t e deferral policy and an abdication of t e Board¶s obligation to protect ee rig ts and t e public interest by preventing an À| A w ole body of doctrine re: deferral of ot er statutory rig ts to arbitration. À| $  á  . and waive t eir rig t to judicial forum. ot er areas of t e employment field (unionized and nonunionized employees). Contending t at t ese reassignments led to a loss of income. w ic CBA w/ t e union. to agree t at disputes arising from t eir employment would be resolved t roug binding arbitration. ae t en took t e same issue to court. securities. *| %$-áenver distinguis ed b/c concern w/ tension b/t collective representation and individual statutory rig ts not applicable to facts of present case. *| Case decided under t e FAA. 3) is t e decision not ³repugnant to t e Act´? Given t e facts.g. t e decision couldn¶t be interpreted consistent w/ t e act. or stoppage. respondents asked t e pnion to file grievances alleging workplace age discrimination. in binding K.´ the award will not be overturned. *| Arbitrator¶s decision may be admitted as evidence in fed¶l courts. (2) and the arbitrator was presented generally with the facts relevant to resolving the ULP.  (April 2009) !| Facts: Petitioner is member of t e Realty Advisory Board on Labor Relations."## .. independent rig t. 2) were t e parties bound. enforceable. $ . ot er damages. mo-strike clause said union reps may not cause or permit (directly or indirectly) a strike. *| CBAs don¶t create individual rig ts. Respondents were directly employed by Petitioner ?emco w ere t ey were licensed security guards for t e building. Only ask: 1) if t e procedure fair. !| . t e respondent.0(: Any suc union waiver (from Gilmer) must be clear and unmistakable. *| Standard for whether arbitrator adequately considered ULP: (1) the K issue is fairly parallel to the ULP issue.(1 4(""4. and the ?ension B/t the ?wo !| Facts:A worker lost on an issue of title VII rig ts in arbitration. t e arbitrator¶s decisions. CBA doesn¶t waive employees rig t to go to court and court will not apply collateral estoppel over ability to go to court. ?itle VII IS an individual. !| aolding: Affirms arbitrator and will not view t e merits. !| Issue: S ould t e courts defer to arbitration agreements in ?itle VII cases? !| %$1$2: Arbitration doesn¶t waive rig t to go to court. !| ": Employees in securities industry could be required. E. ? e arbitrator found t at employee ad been appropriately disc arged. !| ' ( (/: À| &9. ?emco reassigned t e workers to jobs as porters and cleaners.binding arbitration applicable. But t e court considers claims de novo.

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!| Could always sue pnion for breac of duty of fair representation if you don¶t like t e arbitration agreement. t e employee lost. w ic precluded it from objecting to respondents' reassignments as discriminatory. ? e pnion grieved it. an employee to agree to arbitrate w ic includes statutory rig ts? S. *| áC denied petitioners motion to compel arbitration. t ere is no legal basis for t e Court to strike down t e arbitration clause of t is CBA. !| Court parallel started making decisions t at you can arbitrate statutory rig ts -. arbitration of AáEA claims. *| ? e respondents argue t at t e CBA acts as a  4($(2 waiver b/c precludes fed¶l lawsuit and allows pnion to block arbitration of t e claim (t is is t e fundamental problem. take it to t e pnion.antitrust. *| You can¶t by K. t e employee complained to t e pnion. and w ic clearly and unmistakably requires respondents to arbitrate t e claims at issue. An !| áissent (Souter): ? ese are individual rig ts. in advance. *| %$1$2 does not apply b/c arbitration: À| áoesn¶t waive t e rig t to seek relief altoget er. ? e K didn't say t at t e employee was forced to arbitrate statutory rig ts. Bp? you could waive a rig t to a forum. can an employer req. ? en employees go file w/ EEOC. !| 1980's case %$1$2: Civil rig ts c/a. *| COA affirmed olding t at %$1$2 forbids enforcement of collective- bargaining provisions req.  cc   c  claims b/c of its consent to t e new security K. said yes. À| Is appropriate for final resolution of employment rig ts. etc. Employee goes to court w/ a c/a and Employer argues t ey can't do t is b/c already arbitrated. Court said t e employee could go fwd w/ is c/a. Congress as accounted for t e conflict in several ot er ways.Ct. !| Reasoning (? omas): *| AáEA does not preclude arbitration of claims broug t under t e statute. Accordingly. w ic was freely negotiated by t e pnion and t e RAB. Is áFR an adequate protection for t e individual statutory rig ts. Workers filed a complaint w/ t e EEOC alleging t at petitioners ad violated t eir AáEA rig ts and t e EEOC issued eac of t em a rig t-to-sue notice. you can do t at unless t e statute precludes arbitration specifically. !| aolding: A provision in a CBA t at      requires union members to arbitrate age discrimination claims is    as a matter of fed¶l law. waive a statutory rig t. Gets into grievance arbitration t en w/draw b/c pnion consented to t e grounds of t e reassignment and dropped t e cause of action. securities. aving discretion to control grievances on t e way out and block t em if t ey c oose to on t e benefit of t e w ole. !| $$"7: ? e employees as a group w o ave been getting reassigned say t ey¶ve been discriminated. concerned about t e collective trading t em off for ot er grievances. À| Conflict-of-interest (t at pnion's subordinate individuals interests to t e collective interests of all employees in t e bargaining unit) argument really attacks t e mRLA. !| ": mon-pnion employment setting. À| ?wo cases after this: 37 | L a b o r L a w . Gardner-áenver). Court does a full circle and sweeps into CBA w/ union control.

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Ct. Weird set-up. t e FAA is similar looking but does deviate from developments under § 301. !| Wants to c ange t e burden of proof for deferral.  cc   c  !| Case in CO: Agreement left an option for t e employee to go to court. Can you do t is if t e arbitrator is messing up statutory rig ts?W at kind of review will t ere be for arbitration award resolving statutory rig ts. 10 (³and furt ermore. áistinguis es statutory rig ts under ?itle VII and relations ip b/t courts forcing arbitration and sub. ? e court is drawing in union ideas (§301) into t e non-union setting. not t e FAA. judicial review and says discretionary under t e mLRA. or coerce employees in t e exercise of t e rig ts guaranteed in section 7 (employee rig ts to engage in union activities). fn. But.pLP to interfere w/. FAA t e law re: enforcing CBAs is § 301. and (2) a resulting encouragement or discouragement of union members ip. À| Mixing FAA w/ · 301: (1) ? is employer did not move for arbitration under § 301 to enforce t e arbitration agreement (it was a move under t e FAA). In order to get deferral. ?wo elements: (1) discrimination in regard to iring or tenure or some term or condition of employment. ? e áistrict Court says you elected arbitration as t e remedy. we s ould t ink of it like mLRA rig ts. w ere most of § 301 vs.mixing law from ("!-)". but t e statute itself is mLRB discretion. ("!-) ". restrain. so t is case involves t e FAA. PRO?EC?ION OF WORKER CONCER?ED AC?IVI? ÷        À| ·· 8(a)(1) AND 8(a)(3)dual motive cases: $| § 8(a)(3) . Go against Penn Plaza based on Part III leaving open if t ere was clean-cut denial of alleged discrim/statutory rig t. t ey are protected from judicial review under t e FAA´) . (2) In addition to áFR. t e party arguing for it as to s ow K was in t e K and t at t e issue was presented to t e arbitrator. &  c ² s ift burden from t e EE to EE¶r !| GC says being w at t e S. as done w/ statutory rig ts in ?itle VII area.pLP for employer to encourage or discourage members ip by means of discrimination. Fed¶l courts and ?rilogy t at courts s ouldn¶t interpret CBAs. !| Case in mY: Looks almost identical to 14 Penn Plaza and pnion out of t e box denied t e grievance. b/c forces employers to ensure statutory rig ts are interpreted correctly by t e arbitrator. so you can go to court. ? e employee went t roug arbitration and lost and t en tried to go to court. 38 | L a b o r L a w . w en t ese cases go to arbitration. now you can¶t go to court. ? e áistrict Court says if t e pnion can do t at t en K becomes waiver of substantive rig t. Steelworker¶s ?rilogy based on t e notion t at t e parties bargained for t e arbitrator./ (fed¶l common law of § 301 re: finality). $| § 8(a)(1) . SO deferral is a discretionary doctrine. 2011) . Seems contrary to Garnder-áenver. 20. arbitrators ave to interpret unless unconscionable. *| Employer usually arguing for deferral./ finality or new standard of judicial review? À| Memo of the General Counsel (Jan. don¶t know ow muc Gardner-áenver really stands for now after 14 Penn Plaza. and t e arbitrator correctly interpreted t e statutory principles and correctly applied t em in t e case.

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  cc   c  $| ALL VIOLA?IOmS OF § 8 (a) (2) ± (5) area also § 8 (a) (1) !| „  $ .

Amá GC must s ow but for t e pnion activity t is person would not ave been fired. *| aolding: ? e Board found t at t e employee was disc arged b/c of is activities on be alf of t e union. starts talking to more militant outside union. s ows up drunk. W y was t e worker really fired? *| In reaction. Company union.you can¶t violate t e statute unless t e board as found by a    of t e testimony taken. À| Plenty of evidence of just cause. Bp? didn¶t do it until got involved w/ outside union so t e board infers t at motivation was to discriminate against im. w ic sets up some tension. got into verbal altercations. t/f § 8(a)(3) violation. One of is workers/union officials t at t e employer supports. t e statute gets amended in 1947. (? e ot er way to do it is say t at t e GC as to s ow t ere¶s an anti-union animus involved in t e decision to disc arge t e worker. S ifts t e burden. but does t is run against GC aving burden. t en employer would ave to carry affirmative defense. !| m#  ?  . Suggests persuasion burden to GC. *| § 8(a)(3) is about   . etc« fired s ortly after.m# (3d Cir. Bp? also never s owed up to work. *| mot ing wrong w/ treating as affirmative defense. 1943) *| Facts: Employer pays t e union representatives. !| aow do you deal w/ dual motives? *| § 10(c) .

À| Board affirmed. *| aolding: Employee¶s transgressions were commonplace.4 %$ ? Once Animus Establis ed t enEE¶r¶s burden to s ow 33G e would ave fired anyway *| Facts: áriver supervisor ad animus and employee¶s disc arge was motivated by desire to discourage union activities. mot ing bringing up constitutional problems. À| mLRB as acceptable interpretation of t e statute.0(c$ is consistent w/ §§ 8(a)(1) and (a)(3). ? e ALJ was not persuaded t at employee would ave been fired ad it not been for union activities. À| 1st Cir. remanded (w et er t e GC ad proved by a preponderance of t e evidence t at employee would not ave been fired). *| Issue: W et er t e burden placed on t e employer in . GC as burden of proving t e elements of pLP under § 10(c). *| Reasoning: 39 | L a b o r L a w . and no one ad before rec¶d any discipline. but never expressed disapproval. Employer was clearly upset w/ union activity. ?/f board¶s finding t at employee would not ave been fired even if t e employer ad not ad an anti-union animus was supported by t e evidence. and §10(c).   (1983) . w ic provides t at t e board must prove an unlawful labor practice. ais employer only warned im.

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À| ? e board¶s construction permits an employer to s ow w at is actions would ave ben regardless of t e forbidden motivation. dead in Senate) employee s ould get double back pay. t e employer bears t e burden of persuasion w/ respect to t e claimant¶s failure to mitigate is/ er losses.  cc   c  À| W en an employee is disc arged b/c of union activities. À| ? e board¶s construction. t e employer may assert by a preponderance of t e evidence legitimate motives for is decision (t at t e employee would ave ben fired even if e ad not been involved w/ t e union). 40 | L a b o r L a w .Phelps Dodge and Make- Whole Relief: 1941 S. *| Once t e GC est¶d gross amt of back pay. !| a . up eld § 8(a)(3) order calling for t e iring of applicants rejected for union affiliation. ? i sis an affirmative defense. and was not confined to remedying private losses. at least if t ey were outside t e country and could not legally reenter. *| IRCA passed. employment will be found to ave satisfied t e mitigation requirement. An employee w o a s made rsbl efforts to find substantially equiv. ruled t at t is evidence does not provide a complete defense to liability. was warranted b/c t e Act was designed to effectuate t e public policy in favor of self-org. Ps may still obtain back pay for t e pd before t e employer discovered t e grounds. So ow big is t e constraint? *| Bill (got t roug ouse. pncertainties resolved in favor of t e employee. !| After-Acquired Evidence of Employee Misconduct: S. À| Awarding backpay trivializes immigration law and condones/encourages future violations. Generally. If t ey find ot er work. *| 33$ "('  $% (2002): Board found undocumented ad been unlawfully laid off for participating in a union drive. Ct said t e iring order. S.Ct.   +.Ct. but does not c ange or add to t e elements of t e pLP t at e GC as t e burden of proving under 10(c). Also. eld t at suc an award was foreclosed by IRCA policy. Board awarded back pay even t oug employee admitted is papers were false. !| NLRA Remedies in Discharge and Failure to aire Cases . t oug not necessary to protect t e applicants against monetary loss.m#: Relief for Undocumented Aliens? *|  1$+ $' (1984): mLRA applies to undocumented aliens. but t e Board lacked aut ority to award t em reinstatement or back pay. it would be amazing if t ey didn¶t find ot er work.Ct. w ile not required. a former employee¶s false testimony under oat in t e mLRB rg does not preclude t e board from granting reinstatement. deduct earned wages from backpay. Can¶t be reinstated. Lost pay s ould reflect a deduction not only of t e actual earnings of t e discriminates but also of t e amts t ey ad failed to earn w/o excuse. !| W at is t e appropriate remedy in t ese cases? S ould t e person really get reinstated? aow long will t at person really last? By t e time t ey got reinstated. is permissible and t/f entitled to deference.

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A nonunion employee covered by a CBA was denied a retroactive wage increase and vacation payments t at ad been granted to all represented employees w o were union members.(a) On t e basis of employer¶s disparate treatment of is employees standing alone. ? is decision increases employer incentives to ire illegal workers. Eliminates t e finding of intent (can¶t particularly be rebutted). ? ere are already criminal enforcements of t e employment of an illegal alien. t at t e court will infer it. t e employer violates 8(a)(3) by discriminating in wages solely on t e basis of suc members ip (even t oug it ad a K w/ t e union prescribing suc action). À| Note: pnder t e EE¶s Free C oice Act: § 8 (a)(3): would ave awarded áouble backpay for discrimination À| Violations Based on Impact of Employer (or Union) Actions À|   Ê   m#(1954) ² EE¶r cannot pay dif. subject to contempt). Court said t is disparate treatment is ³in erently conducive to increased union members ip´ and discriminatory. or as supplemented by evidence of t e particular circumstances under w ic t e employer acted. by making employment decisions t at treat union members in ³good standing´ differently from nonmembers or members not in ³good standing´ w/o add¶l proof t at t e employer¶s specific purpose in agreeing to suc differential treatment was ³to encourage or discourage members ip in any labor org. Seems like it becomes question of law rat er t an fact and Court¶s may review de novo 41 | L a b o r L a w . À| Intent is required under 8(a)(3). and a union correspondingly violates 8(b)(1)(A) and 8(b)(2). board needs t e backpay weapon. !| áissent: meed t e intent.$(%' . À| áissent argues t ere is no deterrence.$(@) *| /$ . t ereby violating t e statute.  cc   c  À| Board imposed ot er sanctions on t e employer (orders t at employer cease and desist its violations of t e mLRA and post notice to employees setting fort rig ts. ( $( " '$= $' 3 0 '($ '0$' . !| Issue: W et er an employer violates 8(a)(3). OR (b) Even t oug t e evidence of disparate treatment is sufficient to warrant conclusion set fort in (a). Rates based on members ip !| Facts: ? e employer agreed to fill vacancies for radio officer positions from union member sin ³good standing. it is open of t e Board to conclude t at t e conduct of t e employer tends to encourage/discourage union members ip. but some t ings ave suc an in erent consequence.´ A union member was denied a job w/ t e employer b/c e ad not previously obtained clearance fro t e union and t us was deemed not in good standing. !| Concurrence: ?wo possible interpretations of 8a3 .´ !| aolding:? e union being exclusive bargaining agent for ALL employees. t ere must be s specific finding t at t e actual aim of t e employer was to encourage/discourage union members ip. !| Reasoning: *| Specific proof of intent is unnecessary w ereemployer conduct in erently encourages or discourages union members ip. Strange dic otomy (see below).

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   ! " À|  ‘   m# (1945) 42 | L a b o r L a w .

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w ere union organizers w o were not employees were attempting to solicit. and t us it can be limited or restricted as long as general and not discriminatory. À| Literature makes t e appearance of your workplace messy. *| ? e employee was disc arged for infraction of t e rule and t e mLRB found t ere was no discrimination on t e part of t e employer toward union activity. but it¶s a general rule (no passing out of literature. non-working areas)? !| Facts: *| Republic adopted a general rule against soliciting in t e factory or offices well before any union activity at t e plant. a discharge because of a violation of that rule discriminates within the meaning of ·8(3) in that it discourages membership in a labor organization. Can also be targeted at consumers (to boycott).  cc   c  !| ?wo Problems: W at is t e analytical framework? aow do you apply it wit all t e variations from %33'? À| aERE. only actual interference wit Ee rig ts. rights of Ees. À| Intent is not necessary to violate 8(a)(1). À| Passing out literature while you are working is more of an interference. *| An EE. À| ? is context makes a difference to t e balancing test vis-à-vis t e Er. *| ?he Board¶s was correct in its determination that any rule against solicitation in so far as it prohibits union activity and solicitation on company property during the employees¶ own time is prohibited. !| motes: *| ? e context of t is case is t at of Er-Ee setting. *| Court also make a distinction between solicitation and literature. Various messages. w at appens w en it¶s not discriminatory. ? us. ? e rig ts of non-ee organizers are derivative of t e actual ee¶s §7 rig ts. continued to solicit union members ip in t e plant by passing out application cards to employees on is own time during lunc periods. *| Bottom Line from the case is balancing test for 8(a)(1): achieving business goals through property use v. *| ? ree ot er employees were disc arged for wearing union buttons after being asked to remove. À| @ost of t e time solicitation will be to encourage or discourage union members ip. !| Issue: @ay an Ee be fired for violating a general non-solicitation rule by passing out union members ip cards during non-working ours or wearing union buttons? !| aolding: No. non-union times. t ey do not allow for as muc infringement on Er rig ts as actual ee rig ts would. t e general rule triggered a violation ere. not Er-mon-ee setting like wit Lec mere and Babcock. If a rule against solicitation is invalid as to union solicitation on the employer¶s premises during the employee¶s own time. ? us. after being warned. *| ?he general rule against solicitation violated 8(a)(1) by interfering with Ee rights. Accommodating Employee · 7 Rights and Employer Interests 43 | L a b o r L a w .

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etc. pnion used grassy strip for a mont to and out stuff to employees coming and going. !| Court ignored distinction b/t parking lot open to public generally and t e secluded plant in Babcock. !| $  $(/ t ree-factor balancing test: (1) impairment of § 7 rig t if access denied. O?aER AL?ERmA?IVE @EAmS OF CO@@pmICA?IOm WERE REAáILY AVAILABLE. Consider (3) t e availability of rsbly effective alternative means.  cc   c  À| Interest in Maintaining Production and Discipline: Board/courts assume t at Congress did not intend to interfere w/ legitimate employer interests in t e running of business enterprises in §§ 7 and 8. *| Board affirmed and adopted t e recommended order using $  $(/ test. !| áissent: áefer to t e board. pnion must meet t is ig burden. *| pnion alleging pLP to bar t e non-employee organizers from its property. ALJ ruled in pnion¶s favor.said inaccessibility is a reason to grant access doesn¶t mean t ere¶s no ot er circumstance t at would warrant entry onto company property. take down license plate #s to send employees stuff in t e mail. Grassy strip in parking lot is public property. 44 | L a b o r L a w .´ Only w en t ere are no ot er adequate means. !| aolding: ? e union failed to establis t e existence of any ³unique obstacles´ t at frustrated access to employees. À| Interest in Excluding ³Outsiders´: Employer Property Rights: B/c already rig tfully on t e premises.m#(1992) -$$1"/ $$''("/)(/ !| Facts: pnion trying to organize retail employees. Company ad policy of no andbilling or solicitation and asked union to leave w en t ey put ads on cars in parkinglot. owever. Only w ere suc access infeasible t at it becomes necessary and property to take t e accommodation inquiry to a balancing test. *| B/c t e employees do not reside on company property. *| 1st Cir. À| #   +. Bp? ³if t e location of a plant and t e living quarters of t e employees place employees beyond t e reac of rsbl union efforts to communicate w/ t em. enforced t e board¶s order. (2 impairment of t e private property rig t if access granted. t ey are presumptively not ³beyond t e reac ´ of t e union¶s message. t ere is a rule of         . p one calls. t e employer must allow t e union to approac is employees on is property. pnion WAS able to contact t em outside of work via mailing. W at about nonemployee union organizers? À| m#  % (1956): mon-employee unions possess a  ·:   in communicating t eir views to employees. t/f no pLP by barring t e non-employee organizers from its property. § 7 does not protect non-employee union organizers EXCEP? in t e rare case w ere inaccessible (³isolated from t e ordinary flow of info. ome visits. employees soliciting/distributing t oug t not to implicate t e employer¶s property rig ts.mo balancing for non-employee. w ose interpretation in $  $(/ and application in t e case at and was permissible. 4"' 2($obligation not owed to non-employee organizers. t at c aracterizes our society´). !| Reasoning:Babcock created dic otomy b/t employee and non-employee activities. *| Just b/c 4''.

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À| Scope ofc'0‰ !| (0 "" 33' 2 (mLRB 2005): Employer did not commit pLP by instructing employee to stop talking to a union organizer w ile e was trespassing on company property. not mere notice t at an org. campaign exists. is necessary to vindicate section 7 rig ts.  cc   c  !| 4''.recognized t at actual communication w/ nonemployee organizers. *| Board eld t at Lec mere applies equally to nonemployee appeals to customers. !|  . pnion ere wasn¶t able to actually communicate on grassy strip.

(pnion didn¶t argue t is in court.) Went after t e 8a3 45 | L a b o r L a w . b/t organizational. t e employee rec¶d a warning.  4"' 2($ inapplicable b/c not regulating organization rig ts. email *| Reasoning: À| ? e Policy: Employer as basic property rig t to regulate/restrict employee use of company property. prepared on break but sent from work. supplied by employer saying t at anarc ists were going to a union rally was inaccurate. À| ?hird Email: Encouraged workers to participate in pnion¶s entry in an upcoming town parade from union computer. only t e $ to communicate. mo solicitation. Encouraged workers to wear green to support t e pnion¶s position in negotiations. Weren¶t asking people to go. ot er t an t e pnited Way (employer conducted a periodic c aritable campaign). áist. !| Eac time. only a communication. À| Second E-mail: Written from union computer. À| áiscriminatory Enforcement: As a matter of property and K rig ts.1"$%6Œ*Œ*' *| Facts: Employer ad policy t at email system could not be used for non-job- related solicitations. $$ 4%. À| ? e ALJ ruled t e employer may limit e-mail use but pLP to discriminatorily enforce t e policy. But t e EE¶r did violate § 8 (a)(1).Employee wrote 3 different emails and was sanctioned. $  (mLRB 2007) . ? is is solicitation. a employer may impose a rule banning all organizational notices (including c arities) w/o being disparate treatment of unions. mo evidence t at t e employees used e-mail to solicit support for any org. À| Board rejects t at it¶s simply an 8a1 violation for employer to restrict e- mail use generally. (3) by giving a warning for t e 1st . ? is is solicitation. *| aolding: Employees do not ave a statutory rig t to use t e e-mail system for § 7 purposes. E-mail is not so different from ot er means of communication to depart from settled precedent. Legitimate interest to control e-mail system as long as restrictions are nondiscriminatory. and for-sale notices. personal. À| First E-mail: Clarified t at info. Was after t e union rally.non-solicitous. but knew t at e-mail was used to send some personal messages. pLP to discipline employee for 3 emails. áisparate treatment must be B/C OF pmIOm OR PRO?E?Eá S?A?pS. t/f t e policy pro ibiting employee use of t e system for ³non job- related solicitations´ did not violate § 8(a)(1).

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$7($ you can ave a general rule pro ibiting organizational support of entities not immediately involved in t e workplace. or c aritable solicitation.  4"' 2($ balancing test is inapplicable to nonemployee access cases (different employer-employee obligations). encompassing controversial topics. *| marrow exceptions ok but cannot frequently permit civic. but as permitted ot er organizations/groups to andbill/solicit. but all are protected by § 7. ? e employee discrimination standard from  is too broad. ? e company as a broad no solicitation/no distribution policy.rule = employers may pro ibit non-employee distribution of literature. Company officials told t e andbillers to leave and sometimes would call t e police. *| "!/ 2"( "! 3 "/ (2(% 4/ $(1 $$ $ ((%A (3'($(5(  À| Essence of discrimination is failure to treat like t ings alike. ?wo exceptions: (1) inaccessibility and (2) discrimination. t/f no 8a3 violation. !| General Counsel¶s Brief in   1$$"/''' *| Facts: monemployee union agents peacefully distributed informational andbills in front of retail stores.  cc   c  discrimination b/c s e was engaging in union activity violating general rule against using work email/equipment. À| Note: m#  ?    „ + . by rule or practice. W en it comes to supporting or using email for an . !| áiscrimination ?est‰An employer may not exercise its usual rig t to preclude union solicitation and distribution on its property if t e employer permits similar activity by ot er nonemployee entities in similar relevant circumstances. commercial. All activity as potential to impact negatively. similar activity by ot er outside organizations in similar circumstances. *| Argument: ? e employer violated § 8(a)(1) by discriminating against t e pnion¶s andbilling activity. less protective for employees t an non-employee standard. Courts trying to say union activity is different in nature t an ot ers. *| Ask w et er t e employer permits. *| Reasoning: ? e facts ere are strongly discriminatory. ? e company permitted political solicitation on its property. *| Argument: ? e board s ould retain its Babcock discrimination standard. *| Reasoning: À| 4''. and Pain Union Organizers as Protected Employees 46 | L a b o r L a w . *| Reasoning:  dealt w/ w et er an employer unlawfully interfered w/ protected activity w en it disciplined an    for using its e-mail system. *| Argument:  doesn¶t apply in non-employer access cases and s ould be overruled. ? e Act doesn¶t permit a court/employer to make distinctions based on potential impact on t e employer¶s property or business. t/f get rid of it. S e ad been warned. notwit standing adverse circuit court decisions.

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Ct.  cc   c  !| S. up eld Board¶s interpretation of t e definition of ³employee´ in § 2(3) to include 45              .

?&C ad violated §§ 8(a)(1) and (3) by refusing to ire union members w o were going to be paid by t e union w ile t ey attempted to organize t e employer.A facially neutral iring policy only violates t e Act if it is adopted for an antiunion purpose or applied in a discriminatory manner. can c allenge t e employer for not iring (can picket longer if seeking recognition and pLP). Court said union employees are just moonlig ting. À| Averting ³Salts´ through ³Anti-moonlighting Clauses´. Can be up front about it too and if is ig ly qualified. Interest in Entrepreneurial Discretion À| m##.Ct.Cannot be fired for misrepresenting t eir union jobs (§ 8(a)(3) violation). *| Broad language and broad interpretations in past S. gives t em better access to solicit members. decisions."  ? us. À| Courts require proof of antiunion purpose (10 (c) preponderance of t e evidence).

1960) !| Facts: Retail gas station partners ip used a common carrier system of gas delivery on April 1.  ( !- 3 (0   $$ $( ! 3( 4.Œ0 "%$"/4 '$($% 3  418$. 1. antiunion may be proven. Employer told t e disc arged t e employees on Jan. 1959.'$%($*+4 ((($/‰("- !"/ ? e pnion coming onto t e scene was a new economic factor t e employer ad to take into account in calculating costs of operation. !| ? %  á.$% 3!-$. *| $)(""/-$!3(0 $$! "%02$'%'(Œ/4A (4. w/ t e added payroll expense was too muc for t e business. t/f no discrimination against t e t ree employees.0(c$. ? ree drivers joined t e pnion on Jan. 1959 and t e pnion wanted to negotiate. 19. 1959. *| Entrepreneurial.$@* *| . *| pnder . but t e employer can prove t at it would ave made t e same decision based on labor costs and get out of pLP. Be careful about reading 8a3 violations on core entrepreneurial decisions of ow you manage costs. !| Reasoning: *| %-$: C ange in operations motivated by financial/economic reasons is not a pLP. managerial decision. ! (0 $$@@@ 6C 2"($  ! % (0 ' ( %'% !0(  $%(/(4. (6t Cir. pnion tried to negotiate next morning. but company said it ad contemplated subcontracting out t e work for a long time and t e coming of t e pnion. !| aolding:? e c ange was made b/c of rsbly anticipated increased costs.      b/c balancing t e strengt of t e employer¶s interest in being able to s ut down part of its operations for legitimate cost-based reasons (as contrasted w/ t e lack of any comparably strong employer interest in cases like % 33'(was treating union officers better to encourage union members ip)and  4"' 2($). It was a rsbl anticipation of increased costs to sub-K t e work.$$.

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Employer testified t at e couldn¶t take advantage of new mac inery being put in w/ competitive costs b/c t e employees wanted ig er wages. and cannot violate § 8(a)(1).separate entities) resisted by t reatening to s ut t e mill down. À| Board found t e mill was closed due to t e antiunion animus of employer and violation of § 8(a)(3). w et er or not t ey violate sound business judgment. suc action is not a pLP. *| Reasoning: À| Some decisions are just matters of mgmt. and so t e mill was s ut down and t e property/equipment was auctioned off piecemeal. BU? a ("closing is an pLP under § 8(a)(3) if motivated by a purpose to c ill unionism in any of t e remaining plant so t e single employer and if t e employer may rsbly ave foreseen t at suc closing would likely ave t at effect. even if t e liquidation is motivated by vindictiveness twd t e union. iring lists at t e ot er mills. Company (owned 17 plants . *| aolding:W en an employer closes is entire business.company as absolute rig t to close out a part or all of its business regardless of antiunion motives. À| COA denied enforcement. À| Discriminatory Complete Closing: !| pnion argues t at an employer as . unless t ey violate § 8(a)(3). worker were put on pref. Board ordered back pay for all employees until t ey obtained substantially equiv.  cc   c  *| Facts: pnion narrowly won election t e company opposed. Also found mill to be part of single employer group. Also ordered to bargain.

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@ay discriminate but t is is not t e type pro ibited by t e Act. Interfering w/ a businessman¶s decision to go out of business is so fundamental t at you need a clear manifestation from Congress t at t is is intended. (2) act to close t eir plant /        . of sufficient substantiality to give promise of t eir reaping a benefit from t e discouragement of unionization in t at business.      w/o violating t e act even if suc action is antiunion animus. ? is doesn¶t exist. À| Discriminatory Partial Closing: !| Repercussions on w at remains of t e business b/c employer as leverage for discouraging union activity. Ends employer-employee rel. !| ³Runaway s ops´ discouraged b/c t ey deprive t e union of future benefits. w et er or not affiliated w/ or engaged in t e same line of commercial activity as t e closed plant. complete liquidation yields         . But a permanent. !| ?est . reinstatement).e..³If t e persons exercising control over a plant t at is being closed for antiunion reasons (1) ave an          . Remedies still available (i.

      . (Intent not implied like in %33'.) 48 | L a b o r L a w . and (3) occupy a relations ip to t e ot er business w ic makes it       t at its employees will fear t at suc business will also be closed down if t ey persist in organizational activities. we t ink t at a pLP as been made out.´ *| Remand b/c need finding of intent by t e employer.

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mo c ance to reinstate if t ey reopen business far away! !| Underlying Q: mot ing in t e statute (only discouraging/encouraging union members ip).(1) concert. *| What does mutual aid or protection mean? *| m#. clients don¶t do somet ing like t is if t ey are t inking of closing an operation or subcontracting part of it out. aope you can protect jobs of workers and give t em some voice but want employer to keep functioning and still make profit. and (3) means. (2) object or purpose. *| ?hree Elements. aow do you structure t is relations ip so t at t ere is at least an opportunity for a dialogue before a decision is made to close a plant or part of operation or subcontract out t e work? ?he Scope of Protected Employee Activity À| ³Protected´ Concerted Activity: Means ?est · 7. @anage your clients. and s all also ave t e rig t to refrain from any or all of suc activities except to t e extent t at suc rig t may be affected by an agreement requiring members ip in a labor organization as a condition of employment as aut orized in section 8(a)(3). @aybe can give t e employees backpay until t ey find equiv.  cc   c  *| Board found intent from employer¶s antiunion speec es at Kiwanis club. jobs. Employees s all ave t e rig t to self-organization. ow s ould we structure collective bargaining w en a companyexperiencing financial difficulties. ?ell your mgmt. join. *| W at about remedy? Can¶t order im to reopen is business. Rights of Employees. or assist labor organizations. to form. and to engage in ot er concerted activities for t e purpose of collective bargaining or ot er mutual aid or protection. to bargain collectively t roug representatives of t eir own c oosing.

foreman mentioned to one employee if t ey ad guts t ey would leave. ? is was 49 | L a b o r L a w . ‘   (1962)²Group Walk-out to protest Emp. À| aolding: ? e walkout was a protected concerted activity growing out of a labor dispute done solely to contest working conditions. !| 4t Cir. directed reinstatement and backpay for t e employees. Six workers stayed be ind w en foreman persuaded t em to stay. no protected concerted activity. a § 8(a)(1) pLP. Furnaces weren¶t cutting it. constantly complained. À| Facts: Company disc arged seven employees for leaving work in t e mac ine s op w/o permission claiming t at t e s op was too cold to work in. Cond. S op was not insulated and doors were frequently open to t e outside air. !| Board found t e conduct was concerted activity to protest t e failure to supply adequate eat. refused to enforce t e order b/c employees just left w/o affording t e employer an opportunity to avoid t e work stoppage and t us.

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!| ? e EE¶r did not acquiesce in t e slow down. À| Rationale: ? e EE¶s actions were reasonable and grew out of a labor dispute wit in t e plain meaning of t e Act. and ad no establis ed procedure by w ic to take advantage of t eir unanimity of opinion in negotiations wit t e company. or at t e same time a demand is made. ad no representative. !| ? e 7 EE¶s were not organized. *| „#   (mLRB 1950) ²Work slowdown not O. ² ave cake and eat it too? *| m  *  .Courts t/f don¶t want to protect t is kind of activity b/c t ere will be problems. after. and t e EE¶s knew t at t e work rate was unsatisfactory *| Distinguishing ‘ and„#  : W y protected w en leave but not protected for continuing to work (slowdown)?If workers setting pace. not mgmt. ad to speak for t emselves. *| Bp? t eir actions were justified w ere even t e foreman¶s statements about t e conditions of coldness t at were so aggravated on t e day of t e walkout t at t e concerted action seemed like a perfectly natural and reasonable t ing to do.. EE¶s subsequently engaged in work slowdown. rat er to continue to work on t eir own terms. and took t e most direct course to let t e company know t at t ey wanted a warmer place in w ic to work !| Actions emp asized t e seriousness of t eir concerns about t e conditions of t eir employment !| c  B Œ:*: Labor dispute: Any controversy concerning t e terms. t e slowdown was a refusal to accept t e terms of employment as set by EE¶r wit out engaging in a stoppage. rat er t ey s owed t eir concern during t e meeting. À| Facts: EE¶r installed new equipment making lumber car loading easier and t en unilaterally reduced t e rate of pay for its car loaders. employer cannot ire replacements (can do so during strike).K.  cc   c  protected by § 7 because t e Act is broad enoug to protect concerted activities w et er t ey take place before. t e EE¶s engaged in a work slowdown rat er t an an outrig t stoppage and t e EE¶r disc arged t e EE¶s for failing to perform satisfactorily and not because of concerted activity À| Rationale: ? e EE¶s engaged in concerted activity for a lawful purpose !| aowever. ? ey met wit t e EE¶er¶s rep over mutual concerns and e promised to investigate. tenure or conditions of employment !| ? e reasonableness of t e worker¶s decisions are irrelevant for t e purposed of finding a labor dispute. EE¶s were t en let go À| aolding:mot wit standing t e lawful purpose of t e concerted activity.

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 !| Activity pro ibited by state law may still be protected w ere t e state laws restrict activity protected by t e mLRA or t e RLA are preempted by t ose fed¶l laws.m ?.   5 4á 5  :33$($%% eld a s ow of disloyalty to t e employer t at was unnecessary to carry on t e workers¶ legitimate converted activities. ot er fed¶. *| . but did not strike and continued to draw full pay. !| Actual or t reatened violence against persons is also grounds for excluding concerted activity from § 7 protection.: ? reats or actual violence used to intimidate ot er EE´s in t e exercise of t eir rig ts are unprotected *| 0!- c=   : Objective test t at needn¶t s ow t e employee was actually intimidated À|   : Conduct breac ing a contractual duty may not be protected.g.Ê?‘m?á.Êm: áifferent analysis for purpose/objective (must be related to t e workplace) and means used.%"/"$ *| Facts:Original Paint case = unprotected.0". !|      (1953) .?. refusal to leave an employer¶s premises after a spontaneous walkout may be unprotected. by union around t e community didn¶t say anyt ing about t e labor dispute.. !| Relevance of Rsblness to Walkouts: ? e Board as continued to extend protection isolated spontaneous employee walkouts w/o assessing w et er t e employee¶s response was reasonable or proportional to t e employer conduct.  cc   c  À|   ‘: ? e mLRA does not protect conduct t at is illegal under t e Act itself.. ? e picketing c anged to include disparaging andbills about t e EE¶r¶s treatment of t e city of C arlotte as a 2d 51 | L a b o r L a w . !| c2 '-!/: Failure to abide by no strike clause during t e term of a CBA was a breac of K t at constituted a waiver of employee¶s § 7 rig ts. !| ? e Law is presumed to ave been drafted against a backdrop of State criminal and tort law and some concerted activity t at violates state law will be unprotected.Bp?.  &$("+$%0"" . laws. À| 4. ?ec nicians picketed EE¶r¶s refusal to renew arbitration of disc arges in t e ne CBA. or acts to compel an employer to violate t e Act of anot er fed¶l law. aandbills dist. @erely attacked t e paint as being inferior product and support t e union in effort to arrive at CBA w/ employer and don¶t buy t at paint until union is back to work. and courts ave found particular strikes unprotected w ere t e walkout t reatened to cause p ysical damage to t e employer¶s property. but t e Board as also recognized t at balancing of t e severity of t e conduct wit t e potential restraint on t e employees rig t to strike may be necessary !| " $  "%$. E. sit down strikes generally not protected b/c violations of state law. À| 0   ‘: Violent conduct generally falls outside of t e Act.

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but to t e finance and public relations policies t at were t e mgmt¶s responsibility !| A continuing attack initiated w ile off duty. 10 ?ec nicians t oug t responsible were laid off *| Issue: Is t e means of attacking a product appropriate for purposes of negotiating a better CBA. *| aolding: ? is type concerted activity is not protected by t e Act because it is separate form t e labor dispute and were of suc a demonstration of detrimental disloyalty as to provide ³cause´ for termination  *| Rationale: ? e ?aft-aartley Act.m# (1978) ±.($. wage. À| aolding: !| § 7¶s ³mutual aid and protection´ clause protects EE activity outside of t e direct employment relations ip wit t e EE¶r and extends to EE¶s resort to administrative and judicial forums and appeals to legislators to protect t eir interests !| ? e distribution of t e newsletter by EE¶s in non working areas during nonworking time was protected because it implicated only t e EE¶r¶s management rig ts w ic were not s own to be prejudiced in any manner. ? ere is no more elemental cause for disc arge of and EE t an disloyalty to is EE¶r À| Absent a labor dispute t e andbills would ave been grounds for disc arge !| ? e aandbill attack related itself to no labor practice.$$. and it is undisputed t at t e pnion 52 | L a b o r L a w .. 2 sections of t e paper addressed proposed incorporation of t e ³rig t to work´ statute in ?X¶s constitution and addressed t e presidential veto of an increased min.('($. § 10 (c) provides t at no order of t e Board s all require t e reinstatement of any individual as an EE w o as been suspended or disc arged«for cause. upon t e very interests w ic t e attackers were paid to conserve !| Forcing t e EE¶r t pay for suc activities is inimical to t e Act À| ? e Fortuity of t e coexistence of a labor dispute is no decfense !| ? e EE¶s took pains top separate t e attack from t e dispute !| aandbill omitted all reference to t e labor dispute *| áiverted attenuation from it *| Attacked policies wit no discernable relations ip to it À| ? e Only connection to t e dispute was t e undisclosed purpose or motive of bringing some financial pressure to extract form t e EE¶r a concession À| ? ese tactics were ardly less indefensible t an acts of p ysical sabotage *| c$-(0$3% '(((0"4% (  !-@c$-(((0(-   !| „ %+. EE¶r denied permission to distribute t e newsletter to certain EE¶s and pnion personnel and t e pnion filed pLP c are.-"%  *| Facts: pnion seeking to bolster support and gain new members prior to bargaining decided to distribute newsletters to Co. and t e poor broadcast quality it provided to C arlotte as a result. § 8(a)(1) violation and t e COA enforced.  cc   c  class city. Board found § 7. EE¶s in non-working areas of EE¶r¶s premises during non-working time.

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but EE¶s may also be replaced !| c 2  !$$.: airing replacements for refusal to cross picket lines was unjustified because business not significantly disrupted  À| Gen. political sections of t e newspaper were still protected w ere t ey called on workers to act toget er to better t eir working conditions !| pnion security is central to t e concept of strengt t roug solidarity and a mandatory subject of bargaining !| ? e incorporation of rig t to work into t e ?X constitution is significant because it would become more difficult to modify or repeal !| ? e pnion¶s call regarding minimum wage is concerted activity for t e mutual aid or protection of workers because min wage affects wage levels derived from collective bargaining.  À| Refusal to Cross Picket Lines: @ay be protected. 18 suggests t at suc activity. !| GC is mostly taking issue wit t e burden of proof in Olin and t e presumption of an arbitration award¶s validity: 53 | L a b o r L a w .  cc   c  undertook t e distribution in order to boost its support and improve its bargaining positions À| Rationale: Wit out deciding t e precise boundaries of mutual and or protections. Counsel¶s Memo: Effective Remedies in Organizing Campaigns: !| ?he GC is advocating resetting the arbitration deferral standard to pre-olin. but (5 n.1& $% (: ?ruck driver¶s refusal protected. but EE¶r could ire replacements !| 2$( $. and !| Concern by pet.  À| Protests Over Supervisor Identity: c 2  - '0$# 4 2$ &: Supervisor identity is not a legitimate EE interest and t erefore not protected. EE¶s for ot ers mig t gain support for t em at some future time !| ? e EE¶r¶s property rig ts were not implicated because t e EE¶s already ad access to t e property rig ts !| EE¶r alleged no prejudice to its mgmt rig ts !| EE¶s degree of intrusion does not vary wit t e content of t e newsletter. w ile not protected on Ee¶r¶s property because of lack of sufficient connection to workplace concerns. t e incremental intrusion on t e EE¶r¶s rig ts from t eir distribution toget er wit t e ot er sections is minimal !| Off-premises Political Activity: ? e Board as not ruled yet. so t e only cognizable property interest is in t e preventing EE¶s form distributing literature on EE¶r¶s property !| Board as not engaged in discerning between material t at is connected or attenuated from t e central concerns of self- organizing or collective bargaining !| EE¶r conceded t at t e EE¶s ad a rig t to distribute material relating to CBA and organizing. mig t nonet eless be protected as wit in ³mutual aid or protection´ &%(  (Purely political tract uprotected).

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COA denied enforcement. 465 U. À| Effort to make it more difficult to ave deferral !| Procedural C anges: *| Pre-Arbitration: Wants to refer to Office of Advice on w et er to defer w en union brings a claim to mLRB first.  À| Could ave Obama voted out of office by t e time cases applying t is new standard reac t e board. À| ? e assertion of suc a rig t affects t e rig t of all EEs covered by t e CBA 54 | L a b o r L a w . ? en if all seems unky-dory. and arbitrator applied and articulated correct principles. t e previous day. *| ? is memo will ave a certain effect on t e Regional Offices. w ic . !| aolding: (W et er an activity was concerted is merely t e t res old question. ? e CBA contained a provision stating t at it was a breac for EE¶r to require EE¶s to operate unsafe ve icles. À| m# á  +. as long as t e EE¶s action is based on a reasonable and onest belief t at e is being asked to perform a task t at e is not required to perform under is CBA.) *| Individual activity to enforce rig ts under a CBA. (keeps palpably wrong standard) À| Er will want deferral usually. and t e action is reasonably directed toward t e enforcement of a collectively bargained rig t. ? is party will usually be t e worker.S. is concerted activity just as it would ave been ad e filed a formal grievance *| W et er t e EE¶s conduct was protected under t e act is not at issue ere because it was not passed on by t e Board or t e COA  !| Rationale: *| $(4 doctrine²an individual¶s assertion of a rig t grounded in a collective bargaining agreement is recognized as concerted activity and t erefore accorded t e protection of § 7. putting t e burden on Er. and board could ave a w ole new composition.  Individual Employee Action as ³Concerted´ Activity: An individual EE¶s conduct may. e ad elped take to t e repair station because of brake problems. and t e statutory rig ts are parallel wit issue being arbitrated. t e ultimate question is w et er t e conduct was protected under § 7. etc .  cc   c  *| Olin looks to w et er t ere is a palpably wrong decision. arbitrator ad all facts. . and t at it was not a breac for EE to refuse. Board ruled EE´s refusal concerted activity under § 7 according to longstanding $(4doctrine. send it to arbitration. !| Making Er tell arbitrator the proper law under the NLRA. 822 (1984) ² You Can¶t @ake me árive! !| Facts: EE garbage truck driver refused to drive a truck. À| Party attempting to defeat deferral must prove arbitrator did not ave facts. *| Regional office will need to investigate. . *| GC wants to reset burden of proof to party w o is advocating for deferral: prove contract ad statutory rig t incorporated in it and arbitrator was presented wit t e statutory issue. À| Assertion of a CBA rig t is an extension of t e concerted action t at produced t e agreement. nonet eless be deemed concerted activity under § 7..

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Circuit rejection of / . (1984): Board repudiated """ . t e Board ad ered to its original interpretation of t e Act as a discretionary matter. Grieve Later: CBA¶s commonly read to require EE¶s to perform job assignments and t en grieve rat er t an refuse assignments t ey believe not covered. or t at truly brings a group complaint to t e attention of management is concerted activity !|  0$(($. t e á. Concerted Protests: Individual protests and allegations of a sole EE t at t ey are being treated unfairly as an individual are not covered  À| Obey Now. (1986): Single EE contacted Labor áep¶t after several EE¶s ad complained to mgmt was concerted activity. but it is natural for EE¶s to first voice t eir opposition to t eir EE¶r before or per aps in place of filing a grievance  ILLpS?RA?IOm 1  À| Individual v.  cc   c  *| ? e task of defining t e scope of § 7 rig ts is for t e Board in t e first instance and on an issue t at implicates its expertise in labor relations. !| "4 /(": Complaint to áep¶t of Labor after EE¶s ad agreed to complain to mgmt !| 2/$)"'. À| Individual Conduct in preparation for. (1964): Concerted activity ³encompasses t ose circumstances w ere individual EE¶s seek to initiate or to induce or to prepare for group action as well as individual EE¶s bringing truly group complaints to t e attention of management. but t ere is a safety exception. (1986): following á.C. (1975): Worker w o wrote a letter to regulatory board complaining of safety issues was protected absent evidence t at t e ot er EE¶s disavowed suc representation !| / . a reasonable construction by t e Board is entitle to considerable deference²we cannot say t at t e Board¶s view is unreasonable.´ À| Individual conduct t at is t e natural outgrowt of group activity is covered. À| Individual Protests and Individual Action as a Prelude to Group Action: Single EE¶ conduct must be wit t e consent or aut ority of t e ot er EE¶s !| """  0$.C. Circuit t en deferred as a reasonable interpretation of t e Act under 02$. stating t at EE conduct could only be protected if engaged in wit or in t e aut ority of t e ot er EE¶s !| / . *| W en an EE invokes a rig t grounded in t e CBA e does not stand alone² e brings to bear on is EE¶r t e power and resolve of all is fellow EE¶s À| Allowing individual enforcement of CBA rig ts as concerted activity serves Congress¶ purpose of mitigating t e EE¶r-EE inequality t at persists beyond collective bargaining À| Breat es life into t e promises contained in t e CBA as well as t e entire proves envisioned by Congress as a means of ac ieving industrial peace *| ?o be sure t e / tool of invoking CBA rig ts is t e grievance process. contemplation of.  !| m# .

251 (1975< 55 | L a b o r L a w .S.. +. 420 U.

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5t Cir. w ere requiring t e EE to attend alone perpetuates t e inequality t at t e Act was designed to eliminate and bars recourse to t e safeguards t e Act provided to redress t e perceived imbalance of economic power between labor and @gmt À| Asking t e EE to deferred representation until e as already been ³adjudicated´ and disciplined or disc arged would substantially increase t e burden of vindication and diminis t e effectiveness of representation w ere t e EE¶r¶s focus during t e grievance procedure would be defending its actions rat er t an reexamining t em. *| Rationale: ? e Board¶s construction of § 7 creates statutory rig ts of an EE to refuse to submit to an interview wit out a union rep. Board eld t is violated § 8 (a)(1) because s e reasonably believes t e interview mig t result in discipline. and t e Board¶s application of t at meaning in t e reconciling conflicting interests of labor and management.  and 4""  s ape t e limits of t e rig t: !| ? e rig t in eres in § 7¶s guarantee of t e rig t to act in concert for mutual aid and protection !| Only in situations w ere t e EE requests representation !| Only w ere t e fear of discipline is reasonable !| Exercise of t e rig t may not interfere wit legit EE¶r prerogatives and t e EE¶r is free to carry on t e investigation wit out t e interview !| mo added bargaining duty wit t e union rep. w ere e reasonably fears t at discipline may result. w ile not required by t e Act. and called in for an interview surrounding allegations of stealing c icken from t e lunc counter. S e requested er union steward but was denied. À| EE¶r/EE confrontations clearly fall wit in t e literal wording of § 7 !| Even t oug alone. t e balance struck by t e aboard is subject to limited judicial review. is permissible. À| ? "(/3. t e EE seeks ³aid or protection´ !| ? e pnion rep protects t e interests of t e entire CBp by ensuring t at t e EE¶r is not imposing punis ment unjustly À| ? e Board¶s construction of § 7 plainly effectuates t e most fundamental purposes of t e act. !| Remedies for  . ? e Board¶s construction ere. w ic everyone did and even t e a was not sure as to t e policy in t at store. and t e EE¶r refused er request for er pnion rep again. *| aolding: ? e COA impermissibly encroac ed upon t e Board¶s function.  cc   c  *| Facts: EE investigated or t eft. S e was interrogated again. áenied enforcement. aer story c ecked out. and t e interview continued. but t en s e admitted to taking free lunc es.

  Violations: Limited depending on w et er EE was disciplined for underlying conduct or for invoking t e rig ts *| '$%  + (1984): mo reinstatement or Backpay w ere underlying conduct was cause for dismissal *| ? ere is also no ³Exclusion´ of confessions obtained in absence of union rep. !|  .

and t e EE may be disciplined for refusing to interview wit out rep. Rights in a Non-Union Setting: mone.  56 | L a b o r L a w . t e EE may request a coworker as a witness/rep. but t e EE¶r does not ave to accede..

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  cc   c  Union Waivers of Employee Rights to Engage in Protected Activity !| m#.

 À| ? e ban on literature distribution / interfere wit t e exercise of § 7 rig ts. !| ? e pnion may wave ot er rig ts suc as t e rig t to strike. !| @oreover a limitation of t e rig t o in-plant distribution of literature to EE¶s opposing t e union does not give fair balance to § 7 rig t for EE¶s supporting t e union. Board found an § 8 (a) (1) violation following its earlier ruling in "% '( but t e COA denied enforcement finding t at t e pnion ad waived t e lit. Bp? !| It is difficult to assume t at an incumbent union as not self- interest of its own to serve by perpetuating itself as t e bargaining representative !| ? e place of work is uniquely appropriate for dissemination of views concerning t e bargaining representative and t 3 various options open to t e EE¶s !| Banning in-plant solicitation t at is in nonworking time mig t dilute 7 rig ts. 460 U.  !|   „   m#. All four times t e union leaders ip ad been disciplined more severely.S.¶s or to refrain from suc activities. self- organization and t e designation of representatives of t eir own c oosing. t e only issue was w et er t e union could waive t ose rig ts. *| Rationale: EE¶s ave t e rig t recognized in § 7 of t e Act to form. 415 U. join. *| aolding: pnion cannot contractually waive EE¶s rig ts to distribute literature advocating for t e displacement of t e current bargaining rep. 693 (1983) *| Facts: pnion and EE¶r ad negotiated a no strike or walkout clause in t e CBA and t en violated 4 times. and violate t e policy f t e Act in § 1 to protect t e exercise by workers of full freedom of association. *| motes: Restricting t e aut ority of exclusive representative to waive t e free association and free expression §7 rig ts of EE¶s supports free and effective collective bargaining by insuring t at economically strong EE´rs cannot force t e unions to sacrifice at t e bargaining table any of t e rig ts upon w ic t e unions¶ continued existence as effective bargaining agents may depend. À| Powell (Concurring and áissenting): Agrees t at t e pnion may not waive t e in-plant solicitation rig ts of t ose disaffected from t e union.S. but disagrees t at t e Court s ould reac into t e CBA and nullify a bargained for term of t e K. t ereby creating a windfall for t e union and depriving t e EE¶R of bargained for consideration. aere t e EE¶s soug t to distribute literature in support of t e CB-ing Rep. 322 *| Facts: pnion IpE c allenged t e validity of Company¶s rule pro ibiting Lit. owever. %  ? . or assist Labor Org. áistribution rig ts. áistribution on $/of its property w ere t e rule was made pursuant to t e CBA. and t e arbitrators ad up eld disparate discipline 57 | L a b o r L a w . on non-working premises during non-working times.

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. and !| ? ere were only two prior decisions !| And eac agreement contained a provision limiting t e binding effect of t e Arb. an Employer s all not be pro ibited from permitting 58 | L a b o r L a w . Enforced olding t at t e only disparate ?x allowed is w en t e CBA expressly states t at t e officials ave and affirmative duty to prevent woke stoppages *| aolding: ? e union may only waive statutorily protected rig ts t roug explicit. À| ? e EE¶r¶s assertions t at t ere is an implied duty among pnion leaders to enforce no strike/work stoppage agreements does not mean t at t e EE¶r may assume t at a union official is required to attempt to enforce a no- strike clause by complying wit t e EE¶r¶s directions and impose a penalty on t e official for declining to comply. but it may not surrender rig ts t at impair t e EE¶s c oice of t eir bargaining representative.><*  [It S all be an pnfair Labor Practice for t e Employer ²] to dominate or interfere wit t e formation or administration of any labor organization or contribute financial or ot er support to it: Provided. but any waiver of statutorily protected rig ts must be ³explicitly stated´. áecisions to t e term of t e current CBA Employer Support or Domination of a Labor Organization m#‘ · = . t e EEr¶ bears t e burden of explaining t e legitimate business purpose for t e violations. À| ? e pnion may bind its officials to take affirmative steps to end unlawful work stoppages.<. ? e Board found § 8 (a)(1) and (a)(3) violations and t e 3rd Cir. t en t e Board must balance t e opposing interests. ? at . and unmistakable. À| ? e prior arbitration agreements were not clear and unmistakable evidence of a duty w ere arbitration decisions are inconsistent. . clear. clear. In 1977 t e pnion EE¶s refused to cross anot er union¶s informational picket line. Instead t ey negotiated a settlement b/w t e ot er union and t e EE¶r. À| ? e EE¶s actions towards t e union members ip did discriminate on t e basis of union members ip. ? ey were suspended for 25 days/ t e ot er EE¶s for 10 days. and t e EE¶r ordered t e pnion President and vice- president to cross t e picket line.  cc   c  finding t at t e union leader¶s ad an affirmative duty to up old t e no strike provisions. À| (EE¶r also argues t at t e pnion waived t e statutory protections against discrimination on t e basis of union leaders ip status in t e face of t e previous arbitration awards and buy not c anging t e language of t e CBA subsequent to t e awards) À| ? e pnion may waive economic rig ts but may not bargain away its members¶ economic rig t. or ambiguous. sporadic. and unmistakable  *| Rationale: Once t e Board finds t at t e EE¶r violated § 7 rig ts.

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. organized t e committees. provided material support.  À| „   . EE¶r wit drew participation in t e Action committees and informed EE¶s t at any furt er meetings b/w mgmt and EE¶s would ave to wait until after t e election. and !| EE¶s participate and deal wit t e conditions of work or ot er statutory subjects *| aere t e EE¶s acted in a representational capacity À| ? e Employer created t e committees. áuring t e meeting process. and were t e impetus for t eir continued work w ere.  cc   c  employees to confer wit im during working ours wit out loss of time or pay. 309 NLRB 990 (1992) ² ³No good deed goes unpunished´ !| Facts: EE¶r experiencing financial loss made unilateral c anges to EE benefits package. labor disputes. exists. EE¶r controlled t e formation and goals of t e action committees. W en EE¶s became disgruntled EE¶r met wit t em and formed action committees to address issues. for t e purpose of dealing wit EE¶rs !| aere t e activities of t e committees constituted dealing wit an EE´r À| ? ese dealings concern ³Conditions of work´ or ot er statutory subjects suc as grievances. wages rates of pay. !| aolding: ? e EE¶r organized action committees were an EE´r dominated/controlled labor organization because: *| ? e EE¶r organized action committees were an EE´r dominated/controlled labor organization because: À| ? ey fit t e statutory definition under § 2(5) w ere t eir purpose was to address EE disaffection concerning conditions or employment t roug t e creation of a bilateral process to reac bilateral solutions based on EE- initiated proposals À| ? e EE¶r dominated t e action committees in t eir formation and administration and unlawfully supported t em *| Rationale: Any EE representation committee can meet t e statutory definition of labor org. managed t e committees. !| aere t e EE¶s participated in t e action committees À| ? e Org. under BŒC* even wit out a formal meeting or constitutional structure if: À| ? e EE¶s participate. at least in part. but before implementation of any proposals t e pnion (of w ic t e EE¶r was unaware) demanded recognition. or ours of employment !| ? e subject matter of t at dealing concerned conditions of employment À| Furt er t e organization meets t e statutory definition if it !| aas a as a purpose t e representation of EE¶s. at first t e idea was not well received by t e EE¶s À| e EE¶r presented t e committees as a aobson¶s c oice to t e EE¶s: eit er accept t ings as t ey are or work bilaterally wit management to 59 | L a b o r L a w .

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quality. and effectively placed itself on bot sided of t e bargaining table    À| What about EE free choice? !| c 2  !( ! 04 "%$.. safety. 308 p. ? e 7 committees are not labor organizations b/c t eir purpose is to perform essentially managerial functions and t us t ey do no ³deal wit ´ t e EE¶r wit in t e meaning of § 2(5) of t e Act. also overriding t e wis es of t e EE¶s as to member selection." +>>. maintenance and discipline s ort of suspension or disc arge. subject matter of bargaining (no wages). and t ose reconditions t at t ey did pass up t e c ain of command more closely resembled t e types of decisions a traditional supervisor mig t pass along to is superiors. *| Rationale: ? e production teams performed managerial functions. À| ? e teams ³decide and do¶ on a variety of work-place issues. 60 | L a b o r L a w . attendance. 241 (1939): ? e SCO?pS eld t at an EE¶ controlled representation plan violated § 8 (a)(2) even t oug t e EE¶ in question overw elmingly approved of t e committees. training. À| Plant manager testified t at e as never overruled t ese decisions. In fact it is exactly t is interaction b/w t e 2 managerial bodies t at distinguis es t is interaction from ot er interactions w ere abn EE body and managerial body go back and fort to reac a resolution  À| Proposals to Amend · 8 (a)(2) (?EAM Act):Proposals to allow EE¶rs greater latitude in forming EE involvement programs to resolve or deal wit issues relating to t e conditions of employment. cH::(2001) *| Facts:Employer set up a sociologically advanced system of management w ere- by muc of t e front-line managerial responsibilities were andled by production teams composed of EE¶s.  cc   c  undertake t e bilateral exc ange of ideas wit in t e framework of t e committees. À| Antiunion motive is not necessary element of 8 (a)(2) violation *| Concurrence: EE¶r overrode t e wis es of t e majority of EE¶s and establis ed t e committees.  À| 8 (a)(2):Remedies: Domination v. Interference and support !| Interference and Support: Recognition wit eld until certification !| áomination: áisestablis ment of t e organization  À|     and the Delegation of Managerial Authority !| !$ -.S. including more severe disciplinary recommendations. including production. even w en e disagreed«in fact its not exactly clear w at t e plant manager actually did do?!? *| aolding: ? e rationale in $" &% applies ere (distinguis ed in "'(($). À| ?eams implement a variety of decisions wit no managerial oversig t and make ot er recommendations to a managerial team.

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  cc   c  61 | L a b o r L a w .

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<*W enever petition s all ave been filed alleging t at a substantial number of EE¶s wis to be represented for collective bargaining and t at t e EE¶r declines to recognize t eir representative. t e Board s all investigate and direct an election and s all certify t e results **Free C oice Act would ave eliminated election and certified on cards only ´| Congress c ose to regulate recognition rat er t an leave it up to t e economic power of t e unions. aut ority to t e team) and makes final decisions t at a supervisor would make (employer doesn¶t deal w/ any of it). can get around an 8(a)(2) problem. t e definition of a labor org.| @inimize conflict among rival organizations 2. 62 | L a b o r L a w .  cc   c  NLRB DE?ERMINA?ION OFBARGAININGAU?aORI? Obtaining Representative Status through the NLRB¶s Election Procedure ‡| m#‘·'. áeceptive twd employees b/c total control resides w/ employer. or t at t e certified bargaining representative is no longer a representative. ? at any individual s all ave t e rig t to present grievances to t eir EE¶r and to ave suc grievances adjusted wit out t e intervention o t e bargaining representative ‡| m#‘·'. ? e employer really controls bot sides of t e table. ? is concept of deception is in t e background of 8(a)(2). À| Is t ere flexibility under § 8(a)(2) to reorganize t e workplace wit out being accused of creating and dominating a company union? aave to look at § 2(5). . wages. ours of employment. IF employer gives enoug autonomy (no supervisor in t e group but t e employer delegates mgmt.| Generally reduce t e conflict over recognitional issues À| Can¶t form w at was classically called a company union. s all be t e exclusive representative of all t e EE¶s in suc unit for t e purposes of collective bargaining in respect o rates of pay.| @ake it more difficult for employers to play one group of employees against t e ot er 4. . or t e EE¶r alleges t at one or more labor org.| @ake it more difficult for Employers to impose a company-supported union 3.<*Representatives designated or selected for t e purposes of collective bargaining .¶s ave claimed recognition. and workers? 8(a)(2) may address a concern t at employer sponsored unions will lull employees to become apat etic to conditions of t eir employment. or ot er conditions of employment: 2%%. À| W y take suc an adversarial perspective on relations ips b/t mgmt. ´| Congress Believed t at t e government provision of elections would: 1.

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Poling and Surveillance Board @et ods of Regulation: pLP and 8(c). interrogations. áesigned to make muc easier to get recognition faster and bargain faster. mo professionals w/ nonprofessionals. Lec mere. Excelsior Regulating Elections: ? reats.) Given t e differences in t e work place today---SaOpLá 8(a)(2) BE CaAmGEá? Rep rase to permit more flexibility? W en t e statute was enacted. want guards to keep plant safe). multi-facility À| S ould all o t e EE¶s in a job classification at ot er of t e EE¶r¶s facilities wit in a particular geograp ic area be grouped toget er !| uestion of Considerable strategic importance *| 2 p ases: election & bargaining À| Eac side wants to maximize its c ances of winning t e election À| And s ould t e union win. ad a lot of company unions ( %% case -classic example). Factual misrepresentations. 269 (committees set up t at do not deal wit mgmt. Promisies.Free C oice Act . áiscussion on p. @ore voice in workplace and more union representation.board as aut ority to issue a bargaining order w/o employees aving an election. À| 9(b): constraints on appropriate bargaining units.  cc   c  À| ? e problem in more modern work settings is doctrine dealing w/ setting up communications devices ( !$ -). Inlamatory. À| Concept of employee free choice .Passed by aouse but not Senate. wants to ensure t e strongest and possible in negotiations and administration. made it more difficult. Laboratory Conditions (General S oe) À| Appropriate Bargaining Units: § 9 (a) requires ³an appropriate bargaining unit´ !| áefined by job classification rat er t e particular olders of jobs !| pnit questions arise in 2 contexts: *| Single facility À| S ould all nonsupervisory EE¶s be grouped toget er À| S ould t e unit contain only a limited number of job classifications *| Single v. mutone and Avondale. ?ension as to w et er 8(a)(2) really applies anymore« want to give workers more voice. !| petition for a craft and litigate w at constitutes an appropriate bargaining unit !| cases come up w en noncompete clauses are drafted À| 3 ways to get recognized: !| election !| agreement !| toxic environment . Access: Babcock. *| ? e pnion gets first stab at determining t e bargaining unit in its petition for certification À| pnion as a c oice of stipulating to ³compromise units´ suggested by t e EE¶r or olding out for a earing À| Researc indicates a decreased election success rate of 15% w ere t e union goes to election wit a unit different from t e one it originally petitioned 63 | L a b o r L a w . áon¶t put guards wit non-guards (obviously.

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medical tec nicians. a earing will be eld at regional office *| öáeterminations by regional director are subject to discretionary review by t e Board À| Appropriate Bargaining Units !| Employer wants bigger bargaining agreement b/c t en less likely t e union is to win. !| Board considered t e possible alternatives.  cc   c  À| But unions also fare muc better if elections are eld wit in 2 mont s of petition *| Statute requires an (4. weig ed conflicting arguments. 499 p. and leaves and open-ended exception for cases in w ic a party can demonstrate exceptional circumstances. and ot er non-professionals. clerical workers. $( mO? t e ( appropriate bargaining unit À| EE¶r often seeks to alter t e petitioned-for unit to expand t e number of included job categories À| If t e parties cannot agree to a unit. !| ? e rule itself does not cover t e entire ealt -care industry. 606 (1991) À| Facts: ? e ospital industry soug t review claiming t at ³in eac case´ from § 9(b) meant t at t e Board ad to make individualized determinations of appropriate bargaining units and could not designate t em in advance t roug its rule making powers. decided against t em. guards. *| '$(" )$2  c.S. 1990) À| Facts: aospital association protested t e Board¶s use of its rulemaking aut ority to recognize only 8 bargaining units in t e acute-care ospital setting: P ysicians. ? e aospital industry objected to any rule requiring t e recognition of more t an t e statutory minimum. 64 | L a b o r L a w . ?akes more time to organize. but t e Board was justified in seeking to establis a rule t at would produce certainty and predictability in t e face of itsfailed attempt to use common law to arrive at a loose standard !| aospitals want fewer units to drive down bargaining costs and give t emselves a greater bargaining advantage !| pnions want more units t at are omogenous because it makes collective bargaining easier due to commonality of t e interests involved. 3 units. and gave plausible reasons for its c oice. À| aolding:? e Board¶s use of its rulemaking aut ority to eliminate discretion as to appropriate bargaining units from t e decisional process was itself discretionary and well warranted. reasoned. since it would only accept a minimum number of units already mandated in t e statute.    *| '$(" )$2  c. registered nurses. 899 F. skilled maintenance.2d 651 (7t Cir. ot er professionals.Is t ere a s ared community of interest? !| m#á   *   . and was entitled to judicial deference À| Rationale: ? e ospital industry objected to any rule w at-so-ever.$$.

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1983) À| Facts: pnion soug t and won recognition of single-store bargaining unit despite attempts by store c ain to ave t e Regional director certify a larger unit (all stores in t e p. its primary focus s ould be t e EE freedom of c oice in t e exercise of t eir rig ts under t e act and EE freedom can tip t e balance in determining w ic of 2 equally appropriate units s ould be preferred. but rejected t e ?aft proposal of limiting ealt care bargaining units to 5. À| aolding:? e Board¶s determination t at t e EE¶s at t e restaurant constituted an appropriate bargaining unit was wit in its discretion and supported by substantial evidence in t e record. !| ? e admonition by Congress to t e Board to prevent proliferation is not law and t e petitioner cannot argue t at 8 bargaining units represents a proliferation !| ? e rule is neit er arbitrary nor capricious because t e Board relied on 13 years of experience in developing t e rule. gave extensive consideration to t e issue of t e number and kind of bargaining units.  cc   c  À| aolding:? e Board is due substantial deference in t e use of its rulemaking aut ority to develop standards for t e exercise of its jurisdiction and w ere it develops a rule based on its expertise and extensive consideration to Congress¶ concerns and t e policies of t e Act. only an appropriate unit and t e BOP is on t e EE¶r to s ow t at t e Board¶s unit is '""/ inappropriate. but t at w enever t ere is a disagreement t e Board s all resolve t e dispute (³w enever necessary´). EE¶r refused to bargain and appealed a bargaining order again arguing against t e appropriateness of t e CBp. !| ? e Board is certainly allowed to develop rules to guide its discretion eit er t roug t e process of case-by-case adj. À| Rationale: ? e P rase ³in eac case´ does not mean t at t e Act requires a case-by-case determination of appropriate bargaining units. À| Rationale: ? e Board is not required to select t e most appropriate unit. 705 F. W ile t e Board s ould not ignore t e EE¶r¶s interest in maintain enterprise-wide labor relations.2d 570 (1st Cir. and created an exception w ere extraordinary circumstances would make application of t e rule arbitrary by ignoring substantial differences a given acute-care institution and t e ot ers upon w ic t e rule was developed. was initially proposed). or t e exercise of its rulemaking aut ority. !| Cannot find a basis for petitioner¶s contention t at t e rule delineating appropriate bargaining unit for an entire industry is qualitatively differing form prior rules establis ing presumption t at certain units would be considered appropriate in certain circumstances *| Rule ere is not irrebuttable and contains and exception *| @ust still apply t e rule in case-by case basis !| Congress concerned about possible disruption of ealt care and injury to t e public w en it passed t e bill extending mLRA coverage to private ealt care institutions.S. 65 | L a b o r L a w . *| &$%"/'   2  c.

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!| aere e was in fact autonomous !| ?he Board¶s Policy on Unit Determinations: *| First t e Board examines t e petitioned for unit. if t at unit is appropriate t en t e inquiry ends *| ? e Board may t en look to t e alternative units proposed by t e parties *| ? en t e Board may select a different unit. soug to ave e CBp expanded to cover 5 ot er categories. but it was oped it would cut down litigation and conserve Board resources. wages and ours of work !| Board is not bound to follow any rigid rule and no factor is determinative !| Board as developed administrative policies to guide it in making determinations including t e presumption t at single store units are appropriate !| Control of t e local store @gr of t ose areas most directly affecting t e restaurant¶s EE¶s is one of t e most weig ty factors for determining t e appropriateness of t e single store bargaining unit. but one t e election anyways. construction and ocean-going maritime firms À| 15+ EE¶s at (0( location À| mo ot er EE¶r location wit in one mile À| At least one § 2 (11) supervisor at t at location *| Rule really didn¶t do anyt ing different t an t e adj¶s ad done. by combining professional and nonprofessionals in a CBp wit out majority consent form t e 66 | L a b o r L a w . 358 p. ? e Board refused but said t at 9 EE¶s from t e 5 proposed categories s ould be included in t e professional CBp because of community of interest. ? e Association opposed. *| aolding: ? e Board acted in excess of its delegated powers. as well as promote stipulated election agreements *| Republican Congress killed it«kind of since it really didn¶t do muc to c ange t e outcomes of cases À|     á    Ê     . Ct.S. 184 (1958) ² § 9(b)(1) = narrow COA for violation of t e Act *| Facts: Voluntary labor org (t e Association) representing 233 professional EE¶s petitioned for certification from t e mLRB and intervening competing labor org. t e CBp. to set aside t e Board¶s CBp determination as overstepping its aut ority under §9(b)(1) t at requires Professionals consent for inclusion on non-pro¶s in it s bargaining unit.  !| c%2 8/$. usually selecting t e smallest appropriate unit encompassing t e petitioned for EE classification !| Proposed Rulemaking: Appropriateness of Single Location Bargaining Units *| ? e Board proposed a rule to govern single-locations units in all industries except public utilities. ? en petitioned á. EE benefits.  cc   c  !| Critical consideration is w et er t e EE¶s comprising t e unit s are a community of interest and t e Board s ould consider several factors *| Geograp ic proximity of t e stores in relation to eac ot er *| Level of EE interc ange b/w t e various stores *| áegree of autonomy exercised by store mgr¶s *| Extent of union organization *| aistory of collective bargaining desires of t e affected EE¶s *| EE¶r¶s organizational framework *| Similarity in skills.

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to control w ere t e absence of Jd. Very ard to make out (can probably get if you put guards in a unit b/c t at¶s pretty specific). Will t e employees w o orig. *| Board will not revisit rep issue. contrary to express provision of t e Act. Just don¶t find cases w ere pnion is un appy. ‘. and t e Federal courts ad review power because t e inference is strong t at Congress intended t e statutory provisions governing general Jd.  *| Forces t e union to file a c arge under 8(a)(5) w/ t e Board. *| ? e court t en reviews t e underlying rep issue w en deciding w et er to up old t e Board¶s finding of a 8(a)(5) violation. but employer as met od of refusing to bargain to get at it. pnderstand t e pnion is being constrained in c allenge. *| S ould t e statute be   ? mo sign it will be amended. áelay. or may file its own petition in t e COA under § 10(f). !| pnions ave no comparable means of converting a rep issue into an pLP case to get judicial review. *| ? e employer sits back and waits for t e Board to petition for enforcement under § 10(e). c% is all t at is available to t em.  *| áelays bargaining for about a year and a alf to three years.  !| Free Choice Actwas supposed to address t ese issues re: private sector unions. Sent to @ediator w/in 90 days of Bargaining. Act would ave required bargaining wit in 10 days of election. find t e employer guilty of a refusal to bargain. voted for t e pnion still really care about it.Ct. and order it to bargain. Skews court doctrine in one direction. will affirm earlier determination.  !| Employer¶s ³?echnical · 8(a)(5) Cases´: Employers can always gain judicial review of representational issues merely by refusing to bargain and converting t e case into a pLP proceeding. If Board as acted in excess of delegated powers. t en to an arbitrator wit in 30 days. combined w/ anti-union campaign.  cc   c  professionals. If employer bargains to impasse w/ t e pnion (employer may do t at if t inks over time t at support over time will weaken b/c of delay). Run to court and present legal t eory t at board violated aut ority (collateral attack on Board¶s aut ority) to make a determination of aut ority. t en employer may permanently replace t e worker). But delays would take longer t an just to wait a year and old a new election. even if employer loses t en engage in add¶l delay before bargaining and ope t at pnion support will be weaker and weaker. would obliterate a statutory rig t !| Narrow scope:áon¶t want to encourage collateral attacks in á.  !|  . only real option is to give in to w atever employer wants or S?RIKE (if strike.

or of employees constituting a functionally distinct dept. À| ? e istory of CB of t e employees and t e plant involved.á    *| Craft vs. discretionary factors applied. w/ emp asis on w et er existing patterns of CB are 67 | L a b o r L a w . working in trades/occupations w ere a tradition of separate rep. standard separate identity of craft groups. Issue as declined significantly w/ AFL-CIO agreement. exists.""$'-%( (mLRB 1966): Craft severance determinations t us depended on multi-factor analysis: À| W et er proposed unit consists of a distinct group of skilled workers performing t e functions of t eir craft on a nonrepetitive basis.. etc.. and at ot er plants of t e employer. Industrial Units: Orig.

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?ES? = accretion only w en t e add¶l employees ave little or no separate group identity and w en t e add¶l employees s are an overw elming comm¶y of interest w/ t e preexisting unit to w ic t ey are accreted. À| aistory/pattern of CB in t e industry. most grocery store employees will be organized by unions. incl. t en goes to ot er stores not being struck).$( 3( ( 02 ()% 4.  À| Accretion .  *| ³Contingent´ Workers: áef: employees of temporary agencies w o work for long pds of time at a single user company. t e extent to w ic t e continued normal operation of t e production processes is dependent upon t e performance of t e assigned functions of t e employees in t e proposed unit.  cc   c  productive of stability.(  ( 3 (D $.  (0 . Requires t e consent of bot of eac employer and of t e union rep. incl. experience in representing employees like t ose involved in t e severance action. @ay be barred if t e group ad been in existence at t e time of recognition r cert. ? e Board t en does not conduct initial cert. If separate .$$. elections.  !| $"/ !/ /  . yet was not covered in t e ensuing K OR subsequently coming into existence ad not been part of t e larger unit to w ic t eir accretion is soug t. Consent requirement makes it ard to organize t ese types of workers. Iá during t e pd of inclusion in a broader unit.do t ey want to bargain separately or toget er. À| ualifications of t e union trying to carve out a separate unit.will t e pnion try to drive up salaries in one store and if union won¶t go along and sets up strike (business goes down. rep. À| áegree of integration of t e employer¶s production processes. ? e union must est.0 '$$ " . ³contingent´ workers. Complexities arise w en unions attempt to org.@uc more complicated t an accretion of single employer..$ $ (0 '$(5(    ? 4' 0! $ "/ '$ . and w et er t at stability will be unduly disrupted by a c ange. "($0 $% !"" 4.  À| Extent to w ic employees in t e proposed unit ave est¶d and maintained t eir sep. Good for unions b/c cuts out t e competitive marketplace over our improved working conditions. afforded t em to obtain sep.Restrictive criteria b/c a finding of accretion precludes t e employees at issue from expressing preferences in a secret-ballot election.Judicial assent for formation of multiemployer units.$$. ? eory goes t at stores will be better off. !| Grocery stores: If in a region w ere unions are successful.(  "(4.( (3(4 (()$(""(0(/   !|  . À| Multiemployer Bargaining Units . and t e extent of t eir participation in t e rep.  becomes for employers . its majority status of t e employees of eac employer member of t e unit.

(mLRB 2000): eld t at employees w o are SOLELY employed by t e pSER employer doesn¶t require eit er employer¶s consent to t e unit. t e Board may treat t e supplier and user as ³joint employers´ t at may bot ave obligations twd t e same employees. Ê      *| W en supplier employer supplies employees to perform services for a user employer. *|   ( . but rat er 68 | L a b o r L a w .+.

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Would ave second election. 5'" !| Regulating: *| Elections *| ? reats . Eac employer is obligated to bargain w/ t e union over t e terms t at it controls.($. !| Underlying Issues: W y are we doing t is? áo we really t ink employers engage in t reats t at t e employees can¶t discount it as being r etoric? W y don¶t we trust workers to be able to evaluate w at t e pnion/Employer is saying and make t eir decision? W y do we t ink employees need t is protection Amá is it effective? Are we infringing free speec ? 69 | L a b o r L a w . Can you    to close? mo pLP unless t reat/promise but w at about   ? *| Factual @isrepresentation *| Inflammatory *| Promises *| Interrogations. Regulation of the Conduct of Elections À| Access to the Employee Electorate  !| Access: 4''-. Considerations for Bargaining pnits.  cc   c  applies trad. ? e nonconsensual mixing of employees of different employers vitiates t at basic principle.§ 8(c) (look at statute carefully) and order to cease and desist and order new election. Effective representations means employees be grouped by common interests Amá by common employer. plant/industry. *| #      . and Surveillance !| Board Methods of RegulatingElections: Order to cease and desist *| #. Get out from under § 8(c) (employer speec is not evidence of pLP²only of a nature t at negated free c oice of workers) so no judicial review. *| Suppliers usually in India nowadays. can close s op. Final order so subject to judicial review. specifics of statutes and way t ey impact t e decisions). but employers can consent. craft vs. Court Review of áeterminations. Fragmenting undermines effective bargaining b/c restricts supplier¶s options in bargaining. pnderstand ?ensions b/t Key Areas W ere you Run into ?ensions (Single store vs. comm¶y of interest principles to determine w et er t e requested unit was appropriate under 9(b). Polling. ($$% 2$%". !| Wrap-up of @aterial on bargaining unit. to go back to t e consent rule.$" 0 1 refusal to certify election (no real free c oice). Key t ings: Procedures. *| -!%  $( (mLRB 2004): Overruled ( .Learned in "$. not subject to appeal. c'0. Said t e text of t e act (employer unit being t e broadest unit) reflects t at Congress as not aut orized t e Board to direct elections in units encompassing t e employees of more t an one employer. . multiple stores.

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printed. or visual form. grap ic. or t e dissemination t ereof. or opinion.   %                    !| m   and ‘   (1958) *| Facts:  À| Nutone . w et er in written.Supervisors  . s all not constitute or be evidence of an unfair labor practice under any provisions of t is Act.  cc   c   · 8(c): ? e expressing of any views. argument.

t at if engaged in by employees would constitute a violation of a no-soliciation rule. employees and solicited reports re: t e organizational activities of ot er employees. Company distributed antiunion literature t en after made an anti- solicitation rule (cannot post signs or distribute literature on company property or solicit or campaign on company time) applying to all employees (w et er for or against t e union). does t is necessarily violate t e act (regardless of t e way t e controversy arose or w et er t e employer¶s conduct really did create an imbalance)? *| aolding: ? ere must be    +            . À| Avondale . *| Issue: If t e employer engages in antiunion solicitation. @gmt interrogated employees and t reatened to close mill and take benefits away. Several employees were disc arged. 3 employees laid off.Individual employees solicited union members ip and violated a rule against solicitation. for a finding t at t e enforcement of a valid no-solicitation rule by an employer w o is at t e same time engaging in antiunion solicitation constitutes an pLP.. pnion lostrepresentational election.     .

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) ³Certainly t e employer is not obliged voluntarily and w/o any request to offer t e use of is facilities and t e time of is employees for prounion solicitation. but t e ? reats and interrogation pLP¶s were up eld (not even contested on appeal) 70 | L a b o r L a w . *| Reasoning:  À| Coercive antiunion solicitation runs afoul of t e Act (§ 8(c) ³employer free speec ´ provision) and is a pLP.         À| Look to t e location of t e plant and of t e facilities and resources available to t e p. *| In ($ t e Board¶s findings were up eld and t e COA¶s finding of discriminatory enforcement of t e non-solicitation rule was overturned²t e 5t ¶s rejection of t e Board¶s findings of discrimination and t e disc arges in Avondale were affirmed. ? e Court wouldn¶t assume t at t e request would be rejected as a matter of law. nor are t ey entitled to use a medium of communication simply b/c t e employer is using it. À| ? e pnion never requested t e employer to make an exception. etc. (@aybe a board could conclude as a matter of industrial experience.´  À| Labor orgs are not protected in t e use of every possible means of reac ing t e minds of workers. t e opportunities for effectively reac ing t e employees w/ a pro-union message.

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Bp? t is was abandoned in c2$. Privileged No-Solicitation Rules: An employer may assemble and address a captive audience of employees.   !| Captive Audience Speeches and Broad.  cc   c  *| ?his standard actually gives the Board a lot of flexibility in deciding. but violates t e Act by denying a union¶s request to reply to a similar assembly. in an exercise of its industrial expertise. 8 . that such employer conduct significantly diminishes the ability of unions to communicate w/ employees.($ 0(. $!(.

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    8        4    5                   .

  !| Employer Control of Employee Audience: Employees ave        .      .

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to attend on company time and property to listen to . w ic t e employees were req. by mgmt.

or after t e Regional áirector or t e Board as directed an election.  *| . Interferes w/ ³sober and t oug tful c oice´ and undue adv."/ (2%$%%3"/ *| Facts: Employers failed to supply t e union w/ t e employees¶ names/addresses and unions lost elections.  !| „%    (1966) . *| Issue: W et er an employer¶s refusal to provide a union w/ names/addresses of employees eligible to vote in a representation election s ould be grounds on w ic to set t at election aside. Rule. t e Board as ordered certain forms of union access (bulletin boards. speak to t em in voluntary setting. election. *| aolding: ADJUDICA?ED RULE =     after t e Regional áirector as approved a consent-election agreement entered into by t e parties.           designed to influence t e outcome of a union election. t e      /   . to party w/ last word.  !| ?he Board¶s $   Doctrine and the .   .  . *| $    * Board asserts aut ority to overturn elections w ere ³laboratory conditions´ for eliciting employee preferences ave been impaired even w en t e conduct at issue does not rise to t e level of a pLP violative of §§ 8 or 8(c). !| Access Remedies for Serious ULPs: W ere an employer¶s response to an organizing effort is unlawful/serious in nature. c(($ / + $' Employers can    during captive- audience mtgs and can %           . speec time) to t e employer¶s premises as a remedial measure. ‰ Board sets aside elections w en an employer or a union as delivered a speec ³on company time to massed assemblies of employees w/i 24 ours before t e sc ed. on t eir own time. Can individually address voters. OmLY applies to speec es w/i 24 rs.

 á      .

available to all parties in t e case. s all make t is info. À| 0((0  . ? e Rá in turn.. containing t e names and addresses of all t e eligible voters.

 À| Employees need an            .@ $%! "%(4 33'$(/"(@ *| Reasoning: POLIC = want employees to make a        .

  concerning representation for a better position to make a fully informed and rsbl c oice. 71 | L a b o r L a w .

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'0 *| Facts: Employer sent letters. t is was rulemaking.(0($$. *| Adjudicative Rulemaking: áidn¶t follow APA. @ere possibility is insufficient basis for denying t e opportunity altoget er. !| Determining Likely Impact of Employer Speech = OBJEC?IVE ?ES?: ? e Board does not concern itself w/ t e actual impact of speec or ot er conduct on t e specific employees involved. determines. based on its understanding of ³industrial reality.  cc   c  À| Balancing Interests . À| -       Ê Speec made it clear t at e would not aim to w/draw special privileges. etc. Suc a matter s ould be left to t e Board¶s expertise.´             /+  +      %    ·:. @ade it prospective. *| marrow Issue: W at constitutes a   under § 8(c)¶s exception? Yes OK! *| aolding: Employers can   " t at unionization will decrease or w olly eliminate work opportunities. !| mo infringement on employee rig ts. and made a speec arguing against t e union. À| Narrows   and m   : ? e existence of alternative c annels of communication is relevant only w en t e opportunity to communicate made available by t e Board would interfere w/ a SIGmIFICAm? employer interest.Any employer interest in secrecy is outweig ed by t e substantial public interest in favor of disclosure. Rat er. An employee exercises is rig ts by voting for or against representation.aERE. Suc    come w/i t e protection of § 8(c) w en employer would take steps solely from      and w/ regret. or create greater rigidity in personnel relations ips.  !| mo danger of arassment on employees. increase workloads. 1967) . but still enforces t e subpoena as a product of valid adj. invited employees to dinner to talk over t e unionization. áidn¶t even apply to case before t em! /$1$ (1969) says yes. *| áissent: Context of t e language makes it a t reat from t e perspective of t e employees. *| Reasoning: À| ?     means a t reat of retaliation and t is in turn means not a prediction t at adverse consequences will develop buta t reat t at t ey will be deliberately inflicted in return for an injury. employer has no significant interest in the secrecy of employee names and addresses.  *| Example of the Board¶s authority to prescribe fair election conditions under $     À| Regulation of the Conduct of the Election: Permissibility of t eContent of Communication wit EE¶s  !| #$     (2d Cir.

E. 72 | L a b o r L a w ..  !| · 8(c) bars any evidentiary use of protected speech in a ULP proceeding. for proof of antiunion animus.g.

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.  cc   c  mot OK! !| m#$ .

pres. *| Low profit margin. t e Board could rsbly concluded t at t e intended and understood import of t e message was not to predict t at unionization would inevitably cause t e plant to close but to t reaten to t row employees out of work regardless of economic realities. À| So long as t e communicationsdo not contain a ³t reat of reprisal or force or promise of benefit´ mgmt. Board found t at under t e ?O?C¶s t e EE¶r¶s speec ad violated § 8(a)(1) *| ?est: Assessment of t e precise scope of t e EEr¶s expression must be made in t e context of its labor relations setting. in t e area w ere t e plant is located t at t e pnion as org¶d ot er companies in a similar competitive product market and t e pnion as been demanding similar wages in terms of conditions of employment at eac of t ose companies. À| Employer ad no support for is basic assumption t at t e p would strike. and t e necessary tendency of t e former. Cir.(0($$.? is would be objective prediction. 1994):„%       Employer did not commit pLP by predicting t at t e union would insist on terms similar to t ose found in its 12-plant master agreement w/ t e employer and t at suc terms would imperil two extremely cost-sensitive projects t at were necessary to maintain current employment levels. @ade a personal appeal t e day before t e election.'0 *| Facts: At talks. pnion would be interested in protecting deal it obtained for ot er workers and don¶t want to undercut t at plant.               !  m#„      !| MUS? be capable of proof. À| @ust take into account       of t e employees on t eir employers. said (1) strikes before almost put company out of business. *| Court did say t at § 8(c) is an implementation of t e 1dt Amendment !| ?he $  ?est: S ow predictions concerning t e effects of unionization of t e company by (1) careful p rasing on t e basis of objective fact (2) to convey an employer¶s belief (3) as to demonstrably probable consequences (4) t at are beyond t e employer¶s control. may make a prediction as to t e effects of unionization. to pick up intended implications of t e employees t at mig t be more readily dismissed by a more disinterested ear. *| aERE. Bp?.² Isn¶t t is a subjective standard? mot Objective? *| Employer can avoid coercive speech ULP by avoiding conscious overstatements he has reason to believe will mislead employees. An employer¶s rig ts cannot outweig t e equal rig ts of t e employees to associate freely. À| Employees were particularly sensitive to rumors of plant closings and would take t em as t reats. 73 | L a b o r L a w . Also sent letter and distributed pamp lets. as t ose rig ts are embodied in § 7 and protected by §§ 8(a)(1) and 8(c). and (4) ot er companies in t e area went out of business after unionization.C.  (1969) . b/c of t at relations ip. (2) financial problems would close t e plant. (3) old employees couldn¶t find new jobs. *| ($'($4((0($%%'($E!0/1!0/F(c/$'0 !|     (á.

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´ @ore problematic b/c   . !| A Drafting Exercise (p. *| ³If we allowed t e union to increase your benefits. *| ³We won¶t mess around. 331): Employer runs a risk b/c never know w et er t e alleged pLP would turn out to be one or not. If we determine t at we can¶t operate w/o incurring ig er labor costs. we will completely s ut t e plant down. À| ?   . If no pLP t e workers claim t e employer committed t en t ey can be permanently replaced.´ ? is is probably a t reat! P rase t is some ot er way. Rsbly accurate t at economic strikers can be permanently replaced.  cc   c  !| áetermination seems very fact based and dependent on t e evidence t at t e EE¶r is able to or as produced to support is predictions. we would ave to raise or prices and t is would also cost us business and require cutbacks. pnclear w et er t is is prediction or t reat. ? ere is no way t at t e union can elp you.

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$"0  À| Objections must be filed w/i 7 days of t e election. t ey went                . of t e alleged pLP. À| aERE.$ $. À| @ust be filed w/ 6 mo. !| $      (mLRB 1948) . *| Reasoning: À| Looking at t e met od used by t e president and t e supervisors. t e conduct created an atmosp ere calculated to prevent a free and untrammeled c oice by t e employees."4(/'$%($3"'($ *| Facts: Supervisors visited t e individual employees at t eir omes after working ours to try and get t em not to vote for t e pnion. Prepetition conduct may be considered if it adds ³meaning and dimension´ to related post-petition conduct. À| @ust be based on conduct occurring during t e ³critical period´ (t e pd between t e filing of t e petition and t e election). will sometimes warrant invalidating an election (even t oug t e conduct may not constitute a pLP). À| Can reac pre-petition conduct. (2) File a c arge under · 8(a)(1) pursuant to ULP procedure [and can get order to cease and desist and post notice stating t e employer was found guilty]. (1) File ³objections´ under Board¶s representational procedure [orders new election]. ? e day before t e election president summoned t e employees in groups of 20-25 to is office (locus of final aut ority in t e plant) to read t em an antiunion speec . w ic          . *| aolding: Conduct t at creates an atmosp ere.

 t at t e Board is not justified in assuming t e election results represented t e employees¶ own true wis es. 74 | L a b o r L a w .

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t e extent of dissemination.                 . @isconduct warrants setting t e election aside requires an assessment of t e # of violations.´ À| -       !|  .  (mLRB 1979):? e Board rejected a per se approac (pLP always sets aside election). t e size of t e unit. and ³ot er relevant factors. t eir severity.  cc   c  À| It¶s t e Board¶s job     #‘Ê‘?Ê2 in w ic an experiment may be conducted. under conditions as nearly ideal as possible. !|   .

containing numerous misrepresentations of fact designed to portray t e union as staffed by ig ly paid officials and employees w o were ineffectual as bargaining reps and as a consequence employees would suffer a loss of job security and compensation. or t e use of forged documents render t e voters unable to recognize t e propaganda for w at it is. t e Employer distributed campaign literature to its employees w/ t eir payc ecks.´  !|   m # .(mLRB 1982) *| Facts: ? e day before an election. except w ere deceptive practices ³improperly involve t e Board and its processes. Subject of t e document was anot er union- represented plant. *| aolding:? e Board will   probe into t e  /        .Standard: ? e Board does not probe into t e trut or falsity of campaign propaganda.

and will   set elections aside on t e basis of   .   .

? e Board will intervene in cases w ere a party as used  . campaign statements.

propaganda) t e employees can evaluate it t emselves. À| ? e rule furt ers t e goal of consistent and equitable adjudications by applying uniformly to t e objections of bot unions and employers. documents w ic render t e voters unable to recognize t e propaganda for w at it is. but t e deceptive manner in w ic it was made..´ *| mote: ?ension b/w t reats and propaganda: In " %" t e ³wall of s ame case´ t e EE¶r included t eir own plant name on a tombstone w ere as in %"$% t ey only referenced ot er EE¶rs.     . ?oday¶s employees may be better educated. not on t e basis of t e substance of t e representation. mot too protective. *| Reasoning: À| Elections are set aside. 0$. *| áissent: Puzzled by t e distinction b/t forgery and ot er kinds of fraud. under t reat doctrine t e Board is protective but not under Fraud and misrepresentation?  !| m  * ‘  „    . As long as t e campaign material is w at it purports to be (i. but ³we do not onor t em by abandoning t em utterly to t e mercies of unscrupulous campaigners. Still. 8( std gives definite results w ic are predictable and speedy.e.

  ?* ‘       „  #   : Getman study s ows unions would ave won 46% to 47% of t e 31 elections if t e employer ad campaigned entirely cleanly (and 53% to 75% if t ere ad been no 75 | L a b o r L a w .

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  cc   c  campaign at all). but only (@ &7@        .

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 *| An employer may commit a ULP but the remedies are not severe. *| Employees come in pre-disposed as to w et er t ey want a union or not. ? e campaigns do not influence t e workers all t at muc . identified in t e example. (342)  À|   . ?he U will give up eventually.

then the Board will set aside the election and order a new one.   $    !| m#„%. ? e burden is on t e c allenging to demonstrate t at t e religious/racial remarks were inflammatory or formed t e core of t e campaign. *| ?est:!"" (mLRB 1982) . *| If you get into racial statements. aoneywell failed to est. ? e court will set aside t e decision if t e unin ibited desires of t e employees cannot be determined in an election.'$% '(+".Board set aside an election w ere employers (over 4 mont s) distributed anti-African-American propaganda materials focused on t e union¶s support for t e civil rig ts movement. BU? no ULP. t at t e pnion¶s conduct amounted to a ³sustained inflammatory appeal´ or a ³systematic attempt to inject religious issues into t e campaign. '"'0 *| Facts:pnion agents stated t at aoneyville is run by @ormons and give money to t e @ormon c urc . w ic s ould be s ared w/ workers instead.m# (10t Cir. 2006) . if it¶s a consistent. t e burden s ifts to t e party making t e remarks to prove t at suc comments were trut ful and germane. t at companies ave tax incentive to give profits to c urc es. inflammatory act. Only made in one meeting (out of about 10).´ Religion was not t e core t eme of t e campaign.    !| a   $+. À| . Even if t e evidence were fully credited. À| Inflammatory = statements tending to excite to excessive or uncontrollable action or feeling. Once satisfied. *| aolding: ? e pnion¶s conduct ere did not so lower t e standards of campaigning t at t e unin ibited desires of t e employees could not be determined in an election.

. $ /  $2". didn¶t depend on t e outcome of t e union election. (1964) . *| Facts: Employer sent employees a letter re: t e ³(/ of t e pnion´ and ³t e 3'( t at (  (0 $/ (0(  ( (0$. t e letter said: ³? e pnion can¶t put any of t ose t ings in your envelope--- $"/(0 $/'$%(0(. in isolation. 76 | L a b o r L a w . À| mot a conditional bribe.'$% '(+.$(34$3(. *| Issue: W et er § 8(a)(1) pro ibits conferral of economic benefits on is employees. w ere t e employer¶s purpose is to affect t e outcome of an election.´ After mentioning a number of benefits.´ A detailed statement of t e benefits granted by t e company since 1949 and an estimate of t e monetary value of t ose benefits accompanied t e letter.

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À| Insulating t e employees from calculated good will like t is doesn¶t really deprive employees from anyt ing t at as lasting value. Burden . an              wit out violating § 8(a)(1). !| m#. and t at it did not deviate from t at policy following t e onset of t e union campaign.!@ (0$. t at t e grant of benefits was t e product of a previously est¶d company policy. !| ?he Board and the courts consistently hold that an employer¶s offer of a benefit to employees conditioned on their opposition to or rejection of a union should be treated the same as threats against their support of a union. À| ? e employer can meet t is burden by s owing.. *| pnderlying concern? Could say t is case is premised at least in part on t e notion t at it is unfair to allow employers to ³bribe´ employees during t e campaign w en t e union. $% ("" $%($% (0( (0 $ (0 "/  %$. Employees are not likely to miss t e inference t at t e source of benefits now conferred is also t e source from w ic future benefits must flow and w ic may dry up if not obliged. *| Reasoning: À| ? e danger in erent in well-timed increases in benefits is t e suggestion of a fist inside t e velvet glove. does not ave t e same tactic available to it.Employer must establis ³t at t e timing of t e action was governed by factors ot er t an t e pendency of t e election. (0  (0 $$@ "((" '$3%$' $ (0 !- (0( (0 !- '$)( 2" ( $% (""-3'0'@ *| aolding: Wit antiunion   establis ed. w ic does not control wages and working conditions. e.(-$!/ 0 "%(4((%   c@ 0/ '$)( (0 "/ 4$3( 3 (0 2$( $ (0 !.Board¶s practice is to infer t at a grant of benefits t at coincides w/ employee union activity was improperly motivated and interfered w/ t e employees¶ § 7 rig ts.  cc   c  À| 0()""/!$.g. ?aE ?ES? Presumption .

Exc ange Parts  ""($$'$3$. *| Issue: Waiver of fees = increase in benefit? *| aolding: ? e influence of t ese slips may ave ad a     in t is case w ere t e c ange of one vote would ave c anged t e result [  ].(. An employee w o signed t e slip before t e election became a member of t e p and would not ave to pay an initiation fee/fine if t e p was voted in. S. ? e p won t e election 22 to 20. 77 | L a b o r L a w . affirms.Ct.  (1973) . *| Reasoning:s À| ?ool t e p could use to t eir advantage b/c employees respect t eir coworkers¶ views on unionization issues. t us t e p committed a ULP under 5'0$. À| COA denied enforcement of t e Board¶s bargaining order.4$3( *| Facts: ³Recognition slips´ circulated prior to election.

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  cc   c  À| By permitting t e p to offer to waive an initiation fee for t ose employees signing a recognition slip. w ere t e waiver offer is left open for some pd of time after t e election. À| Distinguishable from „%. ? ere is no evidence t at t e fee was normally imposed for t e sole purpose of removing it during a labor campaign. is     and does not constitute a pLP. *| áissent: À| Well-est¶d t at an ³unconditional´ offer to waive initiation fees. t e Board allows t e union to                 during election campaigns.

b/c (1) er t e benefit is only contingent and small. and (2) t e fist is missing b/c made by union rat er t an employer (source of benefits) (t e p cannot make t e same t reat by offering a benefit w ic it would take away if it lost t e election). *| mote: ? is was t roug an 8(a)(5) pLP c arge/collateral attack of t e EE¶r.  .  . À| .

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Resulted in a tie-vote secret ballot.C. asking about t e p. Also approac ed employee in is work area and asked w at t e employees wanted. Anot er employee involved w/ company pres.´ Later employee came to G@¶s office for LOA and G@ and asked ³in confidence´ w y employees wanted a union. is t ere a istory of employer ostility and discrimination? À| ? e nature of t e information soug t. i. If you do it in t e office of t e supervisor and t e locus of aut ority and do it more t an once.e. !| Always advise clients t at t ey can talk to t e workers about w y a pnion is a bad idea from t e perspective of mgmt. w o¶s ever be ind t is organizing is going to screw up a lot of jobs for a lot of people. etc. Small workplace. Anot er exc ange about w et er t e p would c allenge t e vote of anot er employee and asked about is vote. 1987)  *| Facts: G@ and son of president asked a maintenance employee and asked w at was up w/ unionizing and said ³You know. ow ig was e in t e company ierarc y (can e ire and fire)? 78 | L a b o r L a w . asked t e employee if e was in t e union and stated e didn¶t t ink t e p was a good idea. Can be pLP or at least interference to cause election to be set aside. Cir. !| Overview: *| Permissible to recognize card majority of union..g !| ? . but can¶t FImá Op? in t is way. t en you ave interfered w/ a free election. *| Surveillance: Can¶t take p otograp s of w o¶s on picket line.+     !| Fine line b/t polling and interrogating. *|  $Factors of Coercive uestioning: À| ? e background. À| ? e identity of t e questioner. Bp?different t ing to ave t em in locus of aut ority and ask t em ow (0/ feel about union.e.. @ust follow criteria for polling (make clear t at no adverse impact« best off if ave neutral ? do t e polling for you). i.m# (á. mext t e pres.

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(Ot erwise. (2) t is purpose is communicated to t e employees.) !| Can convey anti-union message as long as couc ed in prediction. ? is was enoug to        so as to require a rerun election. t en stand neutral. 79 | L a b o r L a w . !| Surveillance or Creating Impression of Surveillance ALWA S unlawful. won¶t assess t e trut /falsity---too many t ings said. *| Also cannot photograph or videotape protected activities w/o a showing of proper justification (coercive tendencies t us violates § 8(a)(1)).meed a statute to ave t is b/c of S. Advising clients on avoiding discipline in elections/regulation of campaigns: !| áon¶t ave to stay absolutely neutral. An employer¶s surveillance of its employees¶ union activities is unlawful REGARáLESS of w et er t e employees are aware of t e surveillance. *| aolding: ? e Board could rsbly conclude ere t at t e 8              to elicit specific info. and (5) t e employer as not engaged in pLPs or ot erwise created a coercive atmosp ere. not t reat. *| áon¶t forge a document (misrepresentations cases). *| pmIOm p otograp ing or videotaping of employees¶ § 7 activities. employer as a rbsl basis for anticipating picketline misconduct or w ere documenting unlawful secondary activity. áon¶t ask t em any s about w et er t ey¶ll vote for t e union. Creating t e impression of surveillance also violates t e Act.g.Ct. (3) assurances against reprisal are given. absent legitimate explanation.. !| áon¶t interrogate t e workers. But t e Board goes back and fort on t is . e.  cc   c  À| Place and met od of interrogation (locus of aut ority)? À| ?rut fulness of t e reply. Free C oice 2007 was going to require employers to recognize t e union w en t ey ad over 60%. cases. concerning union strategy so t at t e Company could better plan its own antiunion strategy. NLRB-Compelled Recognition Without an Election À| More Fundamental Q: W et er an employer s ould ave to recognize a union w en t e union presents cards signed for over 50% of t e workers.Absent unusual circumstances. (4) t e employees are polled by secret ballot. !| Systematic Polling of Employees: ?he    Safeguards. is objectionable conduct. polling of employees by an employer will violate § 8(a)(1) pmLESS: (1) t e purpose of t e poll is to determine t e trut of a union¶s claim of majority. *| áon¶t misrepresent as to t e procedures of t e Board itself and ow t e Board operates. and not making any promises. ?o protect yourself in t e event you¶ll t ink you¶ll win anyway.

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If t ey can go back. cases determine/dictate t at t is is t e valid interpretation of t e statute and t is must be w at t e Board does in t e future? À| m#  $  . t en t ey can ac ieve w at some of t e 2007 statute was trying to ac ieve (employers would ave to recognize card majority unless good fait doubt and demonstrate basis for t at doubt). @ust determine w et er t ose two decisions cut for t e discretion of t e Board to ever go back to t e / ".  cc   c  !| Can refuse so long as you do not commit simultaneous pLPs in t e process. !| aow muc do S.Ct.doctrine. Increases potential for unions to succeed more quickly b/c don¶t ave to go t roug election campaign.. !| " and c$%$.

butwit drew bargaining duty on t e basis of cards. !| Reasoning: *|    . *| Remedy: In its discretion. (1969) . All 3 employers refused to bargain on t e ground t at aut orization cards were in erently unreliable indicators of employee desires.´ À| ‘    . but if you commit pLP t at are serious enoug t en it in ibits free c oice.but w at Board ad been doing was not a  of w et er good fait doubt. t e Board can issue a bargaining order. t en t ey s ould issue one.. remedies is slig t and t at employee sentiment once expressed t roug cards would be better protected by a bargaining order. in t e absence of mLRB cert. !| aoldings: *| Board Authority: ? e Board as aut ority to issue suc an order on a lesser s owing of employer misconduct. vigorous antiunion campaigns t at gave rise to numerous pLP c arges. and t ey eit er embarked on. w ere there is also a showing that at one point the union had a majority.A bargaining order would issue if an employer¶s ³course of conduct´ gave indications as to t e employer¶s bad fait ² . À| aow do you distinguis b/t t e t ree categories of cases created by t is opinion? aow does c$%$ impact t is? *| COA said refusal to bargain did not violate 8a5 and refused to enforce t e Board¶s order directing t e employers to bargain on t e basis of 3(1("/.$$. pnder /"-. obtained aut orization cards from a majority of employees in t e appropriate bargaining unit (w/o any coercion). If t e Board finds t at t e possibility of erasing t e effects by t e use of trad.an employer could lawfully refuse to bargain w/ a union claiming representative status t roug possession of aut orization cards only if e ad ³good fait doubt´ as to t e p¶s majority status. %²did 3(1 ("/ remove power to order bargaining w/o election as a remedy of pLP¶s !| Facts: ? e p waged an organization campaign. unless t e employer knows independently of t e cards and t ere is in fact no representation dispute. on t e basis of t e cards. *| Board found t at refusal to bargain violated § 8(a)(5). Sounds like /". (laboratory conditions) t en its an 8(a)(5) violation for refusing card majority. or continued. À| Consider t e extensiveness of an employer¶s unfair practices in terms of t eir past effect on election conditions and t e likeli ood of t eir recurrence in t e future.(0 Gissel 4. w ic enabled t e Board to certify by secret ballot elections under §9 (c). an employer could refuse a bargaining demand and seek an election instead ³w/o a valid ground t/f. and t en. demanded recognition by t e employer. reneging n an agreement to bargain upon verification of cards by 3d party 80 | L a b o r L a w .

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´ *| Remedy for a · 8(a)(5) refusal to bargain - À| Cease-and-desist (10(j) injunctions)as only remedy would reward t e employer and allow im to profit from is refusal to bargain.  cc   c  À| Board says an employer can insist to election regardless of subjective motivation so long as not guilty of misconduct. but still t reatening. *| ? e Court expresses a resorative purpose to t e order: not all pLP¶s will result in Bargaining orders. À| An employer can test is doubts as to t e majority in a secret ballot.In GC brief. !| aoldings: *| An employer. *| aallmark violations t oug t to be particularly coercive and ave lasting effect are actual/t reatened plant closure. and § 8(a)(3) disc arges. and t e pnion ad card majority. À| Only way to effectuate employee rig ts is to reestablis t e conditions as t ey existed before t e employer¶s unlawful campaign. Can demand election w/ no comment. t en Board can issue bargaining order. Really s ould depend on t e facts of t e case before t e Board & COA¶s ave refused to enforce for failing to address w y ot er remedies will not work !| Intermediate case -If not outrageous.unless e engages in ³contemporaneous pLPs likely to destroy t e p¶s majority and seriously impede t e election. just needs ³convincing evidence of majority support´ ( ere by possession of cards signed by a majority).5case -fair election conditions for a rerun cannot be restored t roug traditional remedies.5case -³outrageous´ and ³pervasive´ pLPs (must t e p ave majority of cards??? mot clearw et er Board as aut ority w en non-majority). À| # #  (1974) ² EE¶r ave no duty to seek and election !| Issue: W et er employers confronted w/ bargaining demands by unions    presenting strong proof of majority support must eit er (1) bargain or (2) file for an electiont emselves under § 9(c)(1)(B). and (2) can¶t refuse initially b/c of appropriateness of t e unit and t en later claim e doubts union strengt .. rat er. Bargaining order cannot issue. *| But ow bad do pLPs need to be? !| 4$  . ot erwise . Can¶t refuse to bargain if (1) knew t roug ( $-$ poll t e p ad majority. áoesn¶t specify precisely ow t at rep is to be c osen. ot er t reats of job loss. *| Board authority for recognition other than election ±pnions not limited to elections by t e Act or by 3(1("/ À| § 9(a) refers to reps as t e one ³designated or selected´ by a majority of t e employees. t e EE¶r¶s conduct must be suc t at it undermined t e election process and t at likeli ood of a fair election expressing t e true desires of t e EE¶s is now slim ² w o as to s ow t is? À| Framework: !| 4$ .

. does   violate § 8(a)(5) merely by refusing to recognize a union even t oug t e employer at t e time ad ³independent knowledge´ of t e   .    #.

 pnion¶s valid card majority. À| ? e p can eit er file for an election or press pLP 81 | L a b o r L a w .

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*| ? e   . À| An employer is under no obligation to recognize a U that demonstrates majority support via a card showing or any means other than a Board election.  cc   c  c arges against t e Employer under " (muc more time consuming).

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 (rat er t an t e employer) as t e    of filing an     . À| m  *  &7. As long as don¶t commit ULPs. !| Reserved  in t e Case²Binding Agreements/Polling: An employer t at agrees to be bound by a means of determining majority status ot er t an a Board election (e. If ULPs then they potentially open up the possibility of a bargaining order/cease and desist orders(likeli ood of bargaining order being effective not strong).. can insist on election.g. À| Employer remains free to dispute t e appropriateness of t e bargaining unit. an employer @pS? extend recognition if a p receives majority support in its own poll (not t e case for pnions if lose in poll²still free to ask for Board election). !| Set up framework t e way employers are able to react to presentations of a card majority.Also.!<? Ê. a poll or a ³card c eck´) cannot disavow t e results b/c doesn¶t like t em.

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Employees can observe t at and learn t at t e Board will protect t em w ile t ey¶re organizing. (0(/+/02(0( (0(/2-%  "+ %%$.Remedies (áec. áefined as to w et er t ere is a likeli ood of pLP and issue an order. OUS?ING AN INCUMBEN? UNION  0$4/ !0'0 $$+02$.$$.  ‰GC Memo on Eff. !| Purpose = touc stone s ould be prompt and effective relief to best restore t e status quo and recreate an atmosp ere in w ic employees will feel free to exercise t eir Section 7 rig t to make a freec oice regarding unionization. *| Notice-Reading: aave employee read a notice (w/ official of plant present) *| Access to Bulletin Boards *| Allow Access to „%   List (before reac ing level of being able to petition for elections) *| Order backpay of anyone disc arged !| Symbolic remedies t at t e employer is not all-powerful in context of organizing campaign. GC refers to it as ³nip-t e-bud´ cases.% 4/ $ "/+ %33'(% "/+   2" $$   Bars to an Election À| ?   +„  +   .4($%4. 20. 2010) !| GC¶s commitment to seek Section 10(j) injunctive reinstatement as a quick and effective remedy for an employer¶s serious unlawful conduct during union organizing campaigns. !0$ (0  (0(/ / 4 '0""$.

  !|  m#(1954) ."'($/4 82 | L a b o r L a w .

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3 "/ 3  ( 4. or decert.´ t e election (unlike certification) did not bar a second election w/i a year. election. t oug an employer would still be under a duty to bargain w/ a uncertified p t at ad a clear majority.$ (0$  $ 3 %( 3 '$'$( 3 & 4. enforced t e order to bargain but won¶t commit to 1 yr. substantially all members/officers of t e p transferred affiliation to a new local or int¶l. if by election. t ere s ould be a period of time for bargaining (at least one year¶s protection) before t e employer can ask for a new election. 83 | L a b o r L a w . claims of rival ps. À| Employers s ouldn¶t engage in self. the Board could not hold a second election until a year had elapsed. Employer refused to bargain w/ t e union. À| Loss of majority support after rsbl pd could be questioned by: (1) employer¶s refusal to bargain. or (2) petition by rival p for a new election.elp. § 9(c)(1). § 9(c)(3). À| An employer. continue to bargain until Board gives some indication is claim as merit. s ould petition Board for relief.´ À| ³pnusual circumstances´ previously found in 3 situations: (1) t e p dissolved or became defunct. could petition t e Board for an election.  cc   c  *| Facts: pnion was duly certified after winning majority vote after an election. À| 9t Cir. § 9(c)(1)(B). nine of t e t irteen employees delivered a letter to t e employer saying t at t ey didn¶t want to be represented by t e pnion. (3) t e size of t e bargaining unit fluctuated radically w/i a s ort time. ³unless unusual circumstances. À| One year pd may run from t e date of certification rat er t an t e date of elections (w/i Board¶s discretion). § 9(c)(1)(A)(ii). [Since abrogated by § 9(c)(3). ordinarily a year. *| aolding: W enever a union wins an election. *| Reasoning: À| If employees are dissatisfied. À| Board certification could only be granted by an election.] ?aft-aartley Amendments À| Employees could petition t e Board for a decertification election. Congress set up formal mode of selection/rejection of ps w/ aim of industrial stability. must be onored for a ³rsbl´ period. if in doubt of p¶s majority claimed w/o formal election or beset by confl.  1'  "(/ Œ c :H*  À| Employer can refuse to bargain if e as fair doubts about t e union¶s continuing majority. À| After valid cert. s ould submit grievance to t e Board. If employer as doubts. À| Board found employer committed a pLP under §§ 8(a)(1) and 8(a)(5). A week after t e election and t e day before t e certification. (2) due to sc ism.$$. !| Board applied one-year limit w/o ³unusual circumstances´ provision. Board Working Rules À| A certification. À| If t e initial election resulted in majority for ³no p.

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up to a 3-year maximum. À| Bars a decertification petition filed by employees or rival union for only 3 years. À| áisclaimer . À| mot mandated by terms of mLRA. but Board adjudicates case-by-case.bars an election among employees covered by a valid and operative CBA of rsbl duration. 8"""(' (mLRB 1966). !| Contracting employer and union are barred for t e entire K term. If t e Board determines t at it is t e result of collusion b/t two unions.$($ $. À| áefunct . Bp? a union¶s continuing majority status is irrebuttably presumed during t e term of a K.aff.(08 À| Bar only applies to election petitions. employer wit drew recognition b/c evidence came up casting doubt on union¶s majority status t at it ad gat ered just before t e union accepted t e K ? e courts agreed t e wit drawal was 84 | L a b o r L a w .  cc   c  !| ?he Recognition Bar:Voluntary recognition (w/o election but by agreement) constitutes bar to election for a ³rsbl time´ for parties to reac agreement on first K. disclaims interest in continuing to represent employees. Gives t e parties 60 days to negotiate ³free from t e µt reat of over anging rivalry and uncertainty. a temporary inability to function will not suffice.´ !| Slig tly different in ealt care context.w en t ere is a fundamental split w/i t e union over basic policy issues w ic reac es form t e local to t e ig est levels of t e international. *| c3($.30 day period60-90 days prior to t e expiration date of t e K . À| '"" (1996): Just after t e union accepted K offer. *| (  5($$ À| Extension of prior agreement. !| ?   . and w et er parties were at impasse.rival union. t e K bar will remain in place. even if t e K is longer. taking into account ³attendant problems´ of establis ing initial terms and conditions. À| áoes not bar an election if t e petition is timely filed during t e 30 day pd as measured from t e expiration term of t e original agreement Bp? after t at point - new t ree-year K bar. Looks to degree of progress made. *| 0$%!$%$ "(%% À| Window period .no longer able or willing to represent t e employees. À| Insulated period = 60 day period following t e expiration of t e 30 day window. not to employer wit drawals of recognition. even t oug it is capable of doing so. employees seeking decertification can only file in t is period. *| = $($% ($ À| In writing and properly executed À| Contain ³substantial terms and conditions of employment´ sufficient ³to stabilize t e bargaining relations ip. *| (0%!"3'. See Republic Aviation.´ including a termination date. and w ere t e employees ave taken affirmative steps to c ange t e incumbent b/c of t ese differences. ?ypically takes a year to negotiate a first K. employer.(0 À| Sc ism . prior to t e beginning of t e insulated pd as measured by t e original agreement. w/ or w/o modifications.

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*| 0 '"  3 $( '($ $% (/ 0 .  cc   c  unlawful in lig t of t e new K. ? is skews t e bargaining relations ip and makes CBAs vulnerable to a postformation c allenge t at would not serve t e Act¶s goal of ac ieving industrial peace. mo dice b/c employer using t is rig t as leverage.alt oug 8(f) agreements are enforceable t roug 8(a)(5) and 8(b)(3). t ey do not erect a K bar.$(: Jo n áeklewa . À| ?   .

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or if t e c arging party files a ³Request to Proceed.) Employer polled and p lost 19 to 13.  á    .protect employee free c oice. !| If no decertification request.m#(1998) !| Background &Issue:Acc. A p rep told manager e t oug employees didn¶t want t e p.Issues w et er t e Board¶s standard for employer polling is rational and consistent w/ t e mLRA and w et er factual determinations supported by t e record. áidn¶t consider probative evidence. À| ‘    +. @ust be supported by 30% showing of interest.) Can only file in 90-60 window period or insulated period. Latter two are pLPs unless employer can s ow GF rsbl doubt re t e p¶s majority support. A petition by t e employees t at no longer wants a union can be filed to t e Board.window starts t at goes for 30 days. !| W en a K is due to expire (90 up to 60 days before) .  : Employees may seek to oust union via decertification petition under§ 9(c)(1)(A)(ii). p Filed pLP c arges. !| Facts: Several statements made to managers suggesting t at t e incumbent p lost support among employees. !| Another union coming in as to give mO?ICE w/i t e 30-day window t at t ey will c allenge t e rival union.´ *| On t ese facts. : pnder Board¶s policy.(14/32 implicated as not wanting t e p. Purpose . !| aoldings: *| ? e standard for justifying polling t e workers as to w et er a majority of t em support t e union is a ³good-fait reasonable doubt. *| Lower courts eld polls violated §§ 8(a)(1) and (a)(5) b/c no ³objective rsbl doubt´ re t e majority status of t e p. Lets t e employer known to cease and desist from bargaining w/ t at pnion until t e expiration of t e K. (2) w/draw recognition and refuse to bargain (after K expires). t ere  a ³good-fait reasonable doubt´ and so t e court reverses on t is issue. or (3) conduct a poll (consistent w/ standards). Can be lifted if t e Regional áirector finds t at a fair election can still be eld. agency declines to proceed wit an election w en pLP c arges involving t e unit are pending. (Board¶s blocking c arge policy²unions file pLP c arges to stave off elections t at may result in t eir ouster. ?he Means of Ousting an Incumbent Union À| m  * „   . to precedent. t at you can bargain away! And if you get anot er K during t ose 60 days ave anot er 3 years (contract bar rule kicks back in). employer as 3 options: (1) can request a decertification election (during window or w en K expires).´ Can delay significantly t e ability of t e employer to decertify t e union.  . An election will t en be eld by t e board to see if t at pnion s ould represent t e employees. t en know for t e last 60 days of t e K. !| Reasoning: 85 | L a b o r L a w .

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It may be a puzzling policy. !| Breyer¶s Concurrence/áissent: áisagrees w/ t e factual olding.´ ( earsay?) ? is is not unrsbl to say t e stmt cannot support an objective rsbl doubt. but not so irrational to be ³arbitrary or capricious´ w/i t e meaning of t e APA. as said it will ³view w/ suspicion and caution´ one employee¶s statements ³purporting to rep t e views of ot er employees. t ey can.  cc   c  *| mot irrational to require t e same factual s owing to justify a poll as to justify an outrig t w/drawal of recognition (majority). drawing upon bot reason and experience. even t oug it leaves employers w/ no legal incentive to poll. so making t e same not irrational. but ³w en t e Board purports to be engaged in simple factfinding. *| Court c aracterizes t e Board¶s conduct as fact-finding. Inconsistent to impose t e same standard on two actions (polling and unilateral w/drawals of recognition). Court substituting its own judgment for t at of t e Board.? e Board¶s finding ere rests on refusal to credit probative circumstantial evidence. À| m  *Levitz Furniture: . If t ey wanted to get rid of t e GF rsbl doubt standard altoget er as a substantive matter. but must draw all t ose inferences t at t e evidence fairly demands. $)( ""/ (( 3( c2(7& $( D À| Bot t e majority and Re nquist suggest t at it would be rational for t e Board to require a greater evidentiary std for R@ elections t an for polling. it is not free to prescribe w at inferences from t e evidence it will accept and reject. re t e entire nig t s ift not wanting t e p and t e stmt t at t e p rep t oug employees didn¶t want a p). mot ing in t is case is clear except t e GFRá. ? e Board. *|  standard = w et er a rsbl jury could ave reac ed t e Board¶s conclusion (7/32 employees made statements and t e Board disregarded an 8t employee¶s stmt and t e info. ?o eig tened pressure (experimenter error). ? e std for unilateral w/drawals s ould be ig er. It would be irrational to set t e polling standard ig er OR lower. *| In Class:? ere were all kinds of inconsistencies and problems wit t e EE¶r¶s polling: majority pollced were new ires sunj. áoesn¶t see ow one could plausibly argue t at t ese findings of t e board fall outside t eir delegated aut ority (  = must merely be  ). !| Re nquist¶s Concurrence/áissent:áisagrees t at t e good fait rsbl doubt standard is rational and consistent w/ t e Act.´ Cannot reject some pieces of evidence but must view all evidence in its entirety.

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Bp? for ow long is t e union protected from decertification? 86 | L a b o r L a w .$($ $% %%$)( 02 4" ( 3  0() (0 %/@ *| Standard is C&á order wit order to bargain. !| Good fait rsbl doubt is now t e basis for polling. !| ("" 4" 3 "/ !%! '.Loss of majority in fact would be t e only valid defense to an unlawful w/drawal of recognition c arge. Presumption t at you commit pLP w en you wit draw recognition unless you can prove at t at point.) ?o get election. „    !| Levitz Furniture (mLRB 2011): ? e Board eliminated t e ³good fait doubt´ defense. results can be basis for absolute proof under c2(7 or risk a § 8(a)(5) c arge. ?o wit draw recognition from an incumbent union. must s ow rsbl uncertainty. t ere was no longer a card majority. (After polled. must ave actual proof.

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  cc   c  À| mLRB says no less t an 6 mo.s and no more t an 1 year À| Court¶s ave been ostile and said to go ave an election!  À| m  *             .

$( a union. !| 6 mont s is typical amt of time needed to negotiate a renewal agreement. : Standard remedy = cease and desist order and a bargaining order.  À| „                         .$(3(0"/  !%!('(3'0'3employees(0(%not!$((0 $$@  À| Recognition: Election.?o restore to t e p t e bargaining opportunity w ic it s ould ave ad in t e absence of unlawful conduct and to prevent t e possibility t at t e wrongdoing employer would ultimately escape its bargaining obligations as t e result of t e predictably adverse effects of its unlawful conduct of employee support for t e p   À| A ³Rsbl ?ime´ to Bargain After an Unlawful Withdrawal of Recognition?  !| #  #   (mLRB 2002):aow long are you protected under t at bargaining order for anot er c allenge to decertification? ³Rsbl´ time is between 6 mont s and one year w en t e union¶s majority status cannot be c allenged.promote statutory goals favoring voluntarism and CBing.´ *| Concerns over Cards: À|   .   : Concerns in ". Policy .. know w en to fold µem. But employers can use social pressure .$7 $$5'" 24. maybe. À|         : Cards may indicate t at t ey are merely for t e purpose of obtaining an election. W at is wrong wit social pressure? Infringing on free c oice. Employees may not understand w at t ey¶re signing/aut orizing. Card @ajority. OB?AINING BARGAINING AU?aORI? OU?SIDE OF ?aE NLRB ELEC?ION PROCESS 0$"//2" $("/'. t e remedy will include an order to make t e employees w ole. À| pnions ay obtain voluntary recognition from employers by demonstrating majority support t roug cards or ot er means. À| pnions seek to bypass elections by ³card c eck´ agreements from employers agreeing to abide by results of a card s owing. ? us. Recognitional Picketing. À| Other Remedies: W ere an employer as unlawfully refused to bargain in making unilateral downward c anges in t e employees¶ wages or working conditions. t e Board as never applied its election-preference policy to bar recognition of majority unions. Voluntary Recognition À| Validity of Authorization Cards !| CARDS: ³Know w en to old µem.$$.

some of t e employees w o 87 | L a b o r L a w .       : Card campaigns take longer.

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  cc   c  signed first may ave c anged t eir mind. W y is t e snaps ot of preference important? À| á                 .

?: ? roug t eir antiunion campaigning in captive audience speec es. t us e cannot fig t back. ($0%1 "($$) !| m#$ . À| mLRB generally does not like to look too deeply into t e amount of misinformation being used.uestionable assumption. is it arder for unions to get t eir message out?Implicit assumption t at an employer may not know about t e pnion card campaign. (") À| Forum: Regional office will old earings. constitutional amendments requiring secret ballot for all labor elections: GC said t at mLRB will sue t e states to determine if mLRA preempts t ese. access issues.But can an agency sue a state?Preemption could be used as an affirmative defense if mLRB is trying to enforce card majority board order to remedy employer pLPs. *| States enacted laws. b/c unions like to make t e employer aware of t eir campaign. *| Anot er way to c allenge is if bargaining unit is appropriate. !| Card Challenges: *| One way to c allenge cards is t roug alleging misinformation. state of mind. and awareness.. ? is makes it easier to prove pLP c arges.

(2) t at employee p   ad t e rig t to vote even if signs card. ? e agency. t e employer to bargain.'%'0'- *| Facts: p ad majority by cards. !| ? e Board does not count as evidence of majority support aut orization cards signed by employees w o ave also signed in support of anot er union. Card majorities are valid and not in erently unreliable. À| On cards obtained t roug misrepresentation and coercion (and t/f inferior to elections): see above. 88 | L a b o r L a w . !| Employees s ould be bound by t e clear language of w at t ey sign unless t at language is deliberately and clearly canceled by a union ad erent wit words calculated to direct t e signer to disregard and forget t e language above is signature. claiming a good fait doubt of majority status b/c of t e cards¶     . !| mone of t e following undermines t e validity of a single-purpose card: (1) t at t e card will be used to get an election. will count cards t at repudiate cards signed for a rival union. owever. req. t e p petitioned for election. *| aolding: pnions can establis a bargaining relations ip by means ot er t an a Board election under t e Act. (1969) .$(($% $. Single- purpose aut orization cards (cards t at make clear t at t e signer is aut orizing t e p to act as agent) are presumptively valid. *| Reasoning: À| On cards not reflecting free c oice: see above. and offered to submit t e signed cards to a neutral t ird party for aut entication. (3) t at t e card would be secret ---just to get election. After employer declined to bargain.

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plant. t/f is not element of t e pLPs involved ere. À| Board found a direct deprivation of t e non-consenting majority employees¶org¶l and bargaining rig ts under § 7. *| Reasoning: Rejects t at majority at CBA matters b/c no majority at memorandum date (employer support takes away free c oice).´á      (mLRB 2004) eld no temporary bar w en t e agreement was reac ed b/t t e p and employer before cards evidencing majority status were obtained. !-$. Employer was careless and gives t e p t e power to completely frustrate employee free c oice. !| !| (a)(2): It s all be and unfair labor practice for an EE¶r²to dominate or interfere wit t e ·8 !| formation or administration of any labor organization or contribute financial or ot er support to it. !| P2%%+(0( 4A'(( "$%. Rejects t at employer¶s good fait belief in majority rep matters.Reasoned t at elections were t e best met od for determining w et er employees desired union representation. áissenters argued bar is good policy for industrial peace and stability and t at t e doctrine 0% been welled settled. t emselves advanced only after careful estimate e can readily ascertain t eir validity and obviate a Board election. alt oug in fact only a minority of t ese employees ad aut orized t e union to represent t eir interests. p agreed to stop t e strike t oug . À| If an employer takes rsbl steps to verify union claims. Remedy = cease bargaining and ordered election.  cc   c  À| Requirement of Majority Status at the ?ime of Recognition !| Besides construction industry. *| aolding: It was an pLP (§§ 8(a)(1). p said t ey ad card majority. an employer may recognize and bargain w/ a p as excl. Employer signed ³memorandum of understanding´ w en employees were striking (unrelated) recognizing t e p as bargaining rep of all production and s ipping employees.  89 | L a b o r L a w . Scienter. 3-2 Bus decision. bargaining agent for its employees only if t e p is t e rep of a majority of employees in an appropriate unit. mever c ecked cards against t e employee roll b/c didn¶t ave majority. !| Voluntary Recognition Bar: ? e Board eld t at allvoluntary recognitions erect a bar to an election or wit drawal of recognition for a ³rsbl time. "($%$% 4"0%4/(0%  $((BH+$% )0""$(404(%3(($. After. (2) and 8(b)(1)(A)) for 4(0$"/$% $$ to enter into an agreement under w ic t e employer recognized t e union as exclusive bargaining representative of certain of is employees. )('$3!(00% $. mot undue burden to take rsbl steps to ensure p majority is valid.0 !(0 ( "3(/# !|   ‘m# (1961) *| Facts: p intitiated org¶l campaign at B-A¶s knitwear mfg. a formal CBA was signed.

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$($ 4) eld t at w en you do recognize a union on a card majority. C aracterized as an ³assisted majority.´  !|   . but         . t e rsbl period under w ic t e pnion majority cannot be c allenged is 6 mont s to a year.$($ '$%($% $   4= $( A(/) eld t at an employer¶s recognition of t e p expressly conditioned on its subsequent demonstration of majority support is still unlawful as § 8(a)(2) support. (1966) ('.mot totally overruled. *| á  .(2007): Bus board reconsiders recognition bar. Board concerned w/ employee free c oice. (mLRB 1964) ('. aappening at t e same time t at Free C oice Act is in Congress (act and áana at odds).

not ot erwise employer-supported) union BEFORE t e union as demonstrated majority support. and within 45 days of the notice. *| But ow can bargaining go well if it is uncertain t at union will be around after 45 days? *| If petition is presented. *| Class warfare w/i t e same middle class: Republican rig t is middle class. Ot erwise can¶t process grievances. No elections will be imposed after a card- based recognition unless (1) employees in the bargaining unit receive notice of the recognition of their rights. employers can enter CBAs w/ an independent (t at is. so are public employees. any CBA will not take effect until after an election.) !| But.Workforce is muc more temporary and fluid. !| Valid petition will be supported by 30% of t e unit employees. *| C eck-off dues from employee wages is used to elp unions get funds. !| National Right to Work Act Currently in Congress: *| Would seriously erode strengt of pnions. W/ no dues. ? ey still ave t e áFR. In t e construction sector. to file a decertification petition or to support the filing of a petition by a rival union. !| ³Prehire´ Ks in the Construction Industry: § 8(f) permits w at $%1 "($$ says you cannot do. À| Free c oice act would ave wiped out t is opinion.         À| Modifications: !| Union must immediately notify Board of Recognition and post notice to employees. but t e employees don¶t ave to pay t eir fair s are of dues. !| Doctrine: ?he Successor BarŒ  c. (including sigs from before as well as after recognition. and (2) 45 days pass from the date of notice without the filing of a valid petition. all money for political purposes is gone. airing alls are most efficient way to get temp workers. Employer must bargain w/ union during t ese 45 days.

90 | L a b o r L a w . *| mLRB overturned t is doctrine in early 2000s.    I *W en a company is a successor to anot er company. typically supposed to bargain w/ union in t e successor company.Rsbl period of time for union to establis majority support during t e transition. Obama Board as indicated t at it will take amicus brief on t is issue.

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Even w ere no express provision containing application of t e CBA to t e new facility on proof of majority.  !| m  *? Kroger4‘ ‘8  5-á  : ? e parties to a CBA may lawfully agree t at t e CBA automatically extends to a new facility upon proof of t e union¶s majority support among t e affected employees. Board mig t apply it.  cc   c  *| Successor Bar may revert back into existence. À| ?he Doctrine of Employer Neutrality !|   m . *| áoes $ . apply to After-Acquired facilities? A Rep. t e Board will read t at condition into t e agreement as a matter of law (for agreement to be lawful).

employer violated 8(a)(2). In a rival p situation. 1115 filed new c arges. 1115 filed c arges under 8(a)(1) and 8(b)(1)(A). But Employer refused to bargain pending t e pLP c arges filed by 1115. like 90% by 144). unassisted majority. Local 1115 notified t e employer t at t ey were still organizing and so not to extend rec.a  (mLRB 1982) *| Facts:?wo rival unions began org¶l activities at a nursing ome. À| ALJ said 1115 ad ³colorable claim´ to rep. anot er union must s ow 30% support to force an election *| Reasoning: À| %!($. À| @pS? still ave actual majority support for employer recognition. ? us. w ic represents an un-coerced. À| ?o stop an employer from recognizing a union t at as majority.Card count eld a couple days later and 144 rep¶d a majority of t e employees. ? e 1115 claims were dismissed so t e Employer executed a CBA w/ 144. based on its continuous efforts to obtain employee support (even t oug only ad 2 cards vs. an employer cannot render ³aid´ to one of two or more p¶s t roug a grant of recognition in advance of a Board-conducted election.‘                  4 8    . in a Board-conducted election. before a valid petition for an election has been filed w/ the Board. *| aolding:No longer find violation of 8(a)(2) in rival union initial organizing situations w en an employer recognizes a labor org. to any ot er p. $%1 "($$. Ordered employer to w/draw and w/ old recognition until cert. Local 144 notified t e employer t at t ey ad a card majority. doctrine: Employers can¶t favor one union over anot er.

    5 !| Later on.e.´ 91 | L a b o r L a w .´ À| ? e doctrine as been abused by rival ps using to ³buy time´ for support or simply ³frustrate´ its rivals. a claim t at was not ³clearly unsupportable´ or t at was not ³naked. Board removed rq. p just ad to s ow t ey ad a ³colorable claim´ (standard used by t e ALJ). Looky ere w ere 1115 only as a few cards and 144 as ³overw elming support. petition actually be filed. t at a rep. i..

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t e employees ave made t eir free c oice and t e employer as recognized t at c oice. Employer remains under a duty to bargain in good fait . subject to t e actual-loss-of-majority in fact rule (only valid defense to an unlawful w/drawal of recognition c arge under c2(7& $( ). w en employees sign cards for more t an one union).. !| Decertification Petitions: áecert petitions do not require t e suspension of bargaining w/ t e incumbent (so as not to influence t e impending decert election). W en more t an one p as 30% support.  cc   c  !| ? is actually impedes and frustrates employee free c oice w ere. t e reliability of t e cards is called into doubt b/c people sign dual cards. !| Rival Union Challenges to an Incumbent Union: %" 4 (mLRB 1982) eld t at mere filing of a rep petition by a rival union does not permit an employer to cease bargaining. À| ? e rule also takes care of dual card problems (i. !| m  *     m ‘.e. as ere. An election solves t is. and any K executed after t e petition as been filed will be ull and void if t e c allenging p wins t e election.

 *| Neutrality provision = can¶t say derogatory t ings about t e ot er party during an org¶l campaign. economic leverage. Varies widely by agreement. cards from a specified percentage of t e bargaining unit (ranging from majority to 65%).  * *| pnions trying to bypass elections and campaign rules get t ese agreements t roug economic/political pressure and at t e bargaining table (negotiating CBAs).  *| Card-check agreements = provide for rec. etc. *| pnder  .  *| Enforceable under # #   w ic said election pref. policy does not extend to agreements to abide by a poll or card c eck: an employer t at agrees to onor t e results of a poll or card c eck t en refuses to bargain violates § 8(a)(5). once t e employer or a neutral ? as confirmed t at t e p as pained aut .

It¶s a pLP for a pnion to picket. of employees in ³after-acquired´ stores and to apply t e CBA to t em upon proof of majority support of t e p. may not appropriately be raised under section 9(c). or (C) w ere suc picketing a s been conducted w/o a petition under section 9(c) being filed w/i a rsbl pd of time not to exceed 30 days from t e commencement of suc picketing: Provided. . ps can also agree to mO? attempt to org. t reaten to picket. or forcing or requiring t e employees of an employer to accept or select t e union. or cause to be picketed any employer w ere an object is forcing or requiring an employer to recognize or bargain w/ a union.  Regulation of Organizational and Recognitional Picketing · 8(b)(7) (paraphrased) . employers must onor agreements to recognize t e p as t e rep. ? at not ing in t is sub pro ibits any picketing or ot er publicity for t e purpose of trut fully advising t e public t at an employer does not employ members of. and a question concerning rep. t e employees at some ot er facility by express agreement. t at w en suc a petition as been filed t e Board s all direct an election as t e Board finds to be appropriate and s all certify t e results: Provided furt er. or (B) w ere w/i t e preceding 12 mo a valid election under 9(c) as been conducted.: (A) w ere t e employer as lawfully recognized in accordance w/ t is Act any ot er labor org. or ave 92 | L a b o r L a w . unlessthe union is currently certified.

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and (5). 29.:<   . (2). 29. All t ree laborers at Blinne signed cards for p rep. mot ing in t is section will permit any act w ic is ot erwise a pLP under section 8(b).. (2) payment of p wages. ? e Regional áirector dismissed t e 8(a)(2) and (5) c arges and t at¶s w en t e p filed a rep petition under 9(c). À| pnrecognized ps picket employer in support of a particular demand t at can be satisfied w/o recognition.<. 8(b)(7) does NO? apply when: À| p picketing to protest employer pLPs. Parties reac ed a settlement on t e ot er two c arges. and transferred one employee to destroy t e p¶s majority. "$$fn. § 8(b)(7)(C) requires a timely petition and suc a petition was not filed despite t e pLPs of t e employer and t us t e p violated 8(b)(7)(C). (3). Blinne wouldn¶t rec. (3) protest Blinne¶s pLPs. a labor org. !| Reasoning: *|   =.  cc   c  a K w/i. p picketed for> 30 days for: (1) recognition of t e p. *| If p confined its picketing to protest t e discriminatory transfer of t e employee and t e payment of wages at a lower rate t an prescribed by law. "$$fn. À|     (mLRB 1962) !| Facts: Board reconsiders a ruling t at t e p violated 8(b)(7)(C). unless an effect of suc picketing is to induce (secondary boycotts). 8b7 would not apply and t e p would not ave committed a pLP. À| ³Area standard´ picketing aimed at causing t e employer to adopt employment terms at is enterprise commensurate w/ t ose prevailing in is locale. p filed pLP c arges w/i 30 day pd alleging violations of 8(a)(1). !| aolding: ? e object of t e picketing was recognition and so t e section applies.

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!| (B) + (C) = If picketing p rejected in a VALIá election. t en barred from picketing for 12 mont s. ? en can ave an expedited election pursuant to t e petition and a 8(b)(7) proceeding (normal rep.no time limit on publicity picketing. À| (A) and (B) are clear(immunity periods): w ere a p as been lawfully rec. 93 | L a b o r L a w . and a  concerning rep. cannot appropriately be raised. Bp? explicit language of 8b7 doesn¶t exempt t em. If not certified. À| (C) concerned w/ ³blackmail´ picketing: Even w ere picketing is ot erwise permissible. p argues t at t ey were picketing for a lawful purpose and employer ad duty to rec. procedures apply---s owing of a substantial interest and a preelection earing Bp? t e employer @pS? file t e 8(b)(7) c arge). t e p." . *| p not certified. bot t e employer and employees are entitled to immunity from rec. disputes by election w enever possible. ? us. still only barred in 3 areas (subsections (A)-(C)). ? e Board¶s reading ere is in line w/ t e policy to resolve rep. did not file rep petition during t e 30+ day picket. !| (C) . t ere is a violation. pmLESS already certified. picketing for prescribed periods. or w ere t e employees w/i t e preceding 12 mont s ave made known t eir views concerning representation. or org. Policy = quick resolution to t e dispute. suc picketing is ltd to a rsbl pd of 30 days unless a representation petition is filed before t e 30 days run out.

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case will be eld in abeyance until t e pLP c arges are resolved. join.800. to provide for mandatory injunctions for pLPs during organizing efforts.  cc   c  *| Us MUS? file the rep petition w/i 30 days. t e rep.R.Ea: . W en pLPs prevent a free and fair election. and for ot er purposes.gov/cgi-bin/query/z?c110:a.loc. ?he Employee Free Choice Act of 2007: Intended ³to enable employees to form.´ ttp://t omas. or assist labor organizations.

. provided it is t e representative of is employees subject to t e provisions of section 9(a). . to refuse to bargain collectively wit t e representatives of is employees.´ § 8(d): ³For t e purposes of t is section. to bargain collectively is t e performance of t e mutual obligation of t e employer and t e representative of t e employees to meet at reasonable times and   . . to refuse to bargain collectively wit an employer. .c   ÷ ÷cc÷      § 8(b)(3): ³It s all be an unfair labor practice for a labor organization or its agents .´ § 8(a)(5): ³It s all be an unfair labor practice for an employer . subject to t e provisions of section 9(a).

and t e execution of a written contract incorporating any agreement reac ed . ‘. or any question arising t ereunder. . wit respect to wages.´ Collective Bargaining and the Good Faith Requirement ISSUES: À| W at kind of remedy would deter pnions/Employers from engaging in violations of § 8(a)(5). ours. and ot er terms and conditions of employment. À| Critical in t e area of first-time Ks. . or t e negotiation of an agreement. . À| S ould you ave to bargain if you want to subcontract out t e work to India w ere you don¶t¶ ave a statutory duty to bargain? À| m#  .

 ' 1 '$' '$3"'('" !| Facts: Insurance pnion and Insurance Company could not reac an agreement as to a new CBA despite t e union¶s attempts to bargain in good fait at t e table. ? e Board found t at t e pnion¶s actions outside of t e negotiating table (slow down tactics) were constructive pLP¶s for failure to Bargain under § 8 (b)(3) in part b/c t ey were unprotected by § 7.     (1960)1 %" 3 (0 4. À| Recognized tension b/w t e á?B and t e principle t at parties need not reac agreement on a particular term of t e K 94 | L a b o r L a w . !| aolding: ? e Board¶s may not intrude into t e substantive aspects of t e bargaining process and it exceeded §8 (b)(3).$$. *| ? e á?B was not sweepingly conceived of and t e á?B is essentially a corollary of t e EEr¶s duty to recognize t e union ² not ing more.   . (d) by inferring lack of good fait from t e tactics it used to exert economic pressure in t e course of t e good-fait bargaining negotiations !| Rationale: ? e pnion¶s actions are not forbidden by t e c but neit er are t ey protected under § 7.

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À| m#‘&. clause because it covered conditions of employment and issued an order pro ibiting t e clause and ordering t e Co. t e board places itself in a position to exercise considerable influence upon t e substantive terms of t e K. t e Board concedes t at t ere would ave been no pLP *| But board maintains t at t e inclusion of t e mgmt. Just because it¶s unprotected doesn¶t mean t e union is violating 8(b)(3). etc« *| By attempting to regulate t e c oice of economic weapons t at may be used as part of collective bargaining. clarified t e demands. ad a rig t to negotiate on t e @gmt. Closing off an area of bargaining is a violation of § 8(d).$$. *| ? e use of economic pressure is not at all inconsistent wit t e á?B and it does not matter t at t e type of activity ere is not protected from disciplinary action by § 7. *| If t e EE¶r ad simply refused to agree to t e arb. Court is saying a slowdown is not protected under § 7. refused). clause covering certain conditions of employment (w ic t e Rep. Clause. clause covering some conditions of employment was a derogation of t e EE¶s rig ts under t e statute *| ? e Board may not pass upon t e desirability of t e substantive terms of labor agreements À| ? e á?B is to be enforced by application of t e good fait bargaining standards of § 8(d) to t e facts of eac case rat er t an an outrig t pro ibition !| áissent: W ere t e employer tells t e union t at t e only way to obtain a K as to wages is to agree not to bargain about ot er working conditions. to bargain wit t e union. À| m#‘ m . !| aolding: ? e duty to bargain collectively is enforced t roug t e statute § 8(d) and t e factors must apply on a case-by-case basis to avoid t e Board intruding into t e substantive terms of t e CBA !| Rationale: ? e duty to bargain is implicit in t e c and was made express w en Congress made it t e 5t pLP *| 3(1("/ says t at t e á?B does not compel agreement or t e making of a concession *| ? e Board proposes a different test for á?B t an found in § 8(d) and eld t at t e EEr¶s counterproposal was a violation of t e á?B.  cc   c  À| 1947² Congress afraid t at t e Board was forcing EEr¶s to K and wrote in t e Good-fait Bargaining test in § 8(d) of t e3(1("/ '(  *| Congress also imposed reciprocal duties on t e unions in § 8 (b)(3) *| Congress¶ policy was t at imposing reciprocal duties on t e parties promoted t e over-all design of ac ieving industrial peace: narrowed issues. Parties impassed and t e pnion filed c arge for failure of á?B.(04"3E 3'4. t e employer as refused to bargain about t ose ot er working conditions.F !| Facts: pnion and @gmt could not agree to a new CBA w ere t e pnion proposed an unlimited arbitration clause. ow do you protect yourself against t is? Employer can discipline/disc arge t ese workers. ? e Board rejected t e ALJ¶s findings t at t e Co. !| If you¶re an employer. *| ? e standards in § 8 (b)(3) are too general and not designed to allow t e board t e power to sit in judgment over t e type of economic pressures exerted by t e union.  (1952) . and w ere t e EE¶r proposed a mgmt.

$$. 1984) .(11t Cir.E 3'4."   +.F 95 | L a b o r L a w .

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? e Company essentially insisted on unilateral control over numerous terms and conditions of employment t at were all mandatory subjects of bargaining under t e act. O-? assignments. production quotas. ? e attempted retain compete control over all discipline and disc arge. meeting 18 times over 11 mont s but could not reac an agreement beyond a few terms of lesser importance. 8a5 can protect t e workers if t ey go on strike. wages and wage increases wit out allowing recourse to grievance procedures or arbitration. time studies.  cc   c  !| Facts: Company and pnion bargained. !| Rationale: It was clear t at t e parties ad ³reac ed t e point w en ard bargaining ends and obstructionist intransigence begins. t ose workers are out of work! !| m# . but t e standard is so vague t at pnion can never really be sure to tell t e workers t ey are safe. layoff and recall.´ *| Company insisted on unilateral control over virtually all significant terms and conditions of employment including: À| áisc arge and discipline À| Layoff and recall À| Subcontracting and assignment of unit work to supervisors *| Company required workers to surrender statutory rig t s to bargain or strike. demotions. employer can ire permanent replacements. and responded to t e pnion¶s objections to t e breadt of t e management rig ts clause wit an even broader proposal !| aolding: ? e Board Correctly inferred bad fait form t e Company¶s insistences on proposals t at are so unusually ars and unreasonable t at t ey are predictably unworkable. If pnion is wrong. and EE qualifications À| Vague Standard = ×. mo predictability! Workers w o strike. denied t e non-discrimination clauses. transfers retirement. . wit out offering any incentive *| áenied t e union any voice w atsoever concerning work and safety rules.

. 205 F. t en certainly t e Board must be able to conclude t at t is is at least 2%$' of bad fait . 1953) *| aolding: ³If an Ee¶r can find not ing w atever t agree to in and ordinary current-day K or in some f t e union¶s related minor request. 134±35 (1st Cir. at strike¶s end t ey can displace replacements ired and will be owed backpay if reinstatement is denied À| If not an unlawful bad fait bargaining t e EE¶s will not be entitled to backpay or reinstatement.´ !| Predictability of Bargaining Obligations and ULP Strikes *| Board and t e court¶s ave failed to develop predictable standards in t e area of *| EE¶s ave to bet t eir jobs on w at t ey believe to be an pLP strike À| Board¶s remedies for § 8 (a)(5) violations are generally limited to bargaining orders and do not include imposition so substantive terms. À| If EE¶s strike and it is later determined t at t ey struck to protest unlawful bad fait bargaining. and if t e EE¶r makes not a single serious proposal meeting t e unions at least part way.2d 131. !| Procedural Rigidity 96 | L a b o r L a w .

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*| Rationale: ? e objective of t e Wagner Act was to allow ensure t at EE¶rs and EE¶s could work toget er to establis mutually satisfactory working conditions.   m#(1970) . to reinstate t e closed operation and reinstate t e EE´s wit back pay. t ey polled t eir own workers to determine w at t eir real issues were and issued a proposal from w ic it would not budge (alt oug willing to entertain facts t e pollsters may ave missed).E. À| Allowing t e Board to compel agreement w en t e parties t emselves are unable to agree would violate t e fundamental premise on w ic t e Act is based ²private bargaining under governmental supervision of t e procedure alone. 379 U. . violated § 8(a)(5) because t eir communications of t eir bargaining position to its EE´s caused it to become so locked into its initial position t at alternative proposals (even t ose entailing no additional costs) were rejected out or and À| But w at about exclusive bargaining rig ts of t e pnion and ³direct dealing´ pro ibitions À| Remedies for Bad Faith Bargaining !| a.   34%3(04. *| m#$„.   m#.$$. *| Facts: pnion and Ee¶r in an 8-year struggle over one term of t e CBA ² C eck off¶s of pnion dues. ? e Board and t e COA found t at t e employer violated t e á?B and directed EE¶r to grant a clause to t e union providing for t e c eckoff of union dues *| aolding: W ere t e parties are unable to reac an agreement. not to allow government to regulate t e terms and conditions of employment. w ic applies not just to finding w en a violation as occurred. 97 | L a b o r L a w .  cc   c  *| ? e principal cases deal wit substantive rigidity ² t e Board¶s aut ority to review t e procedural aspects of t e parties¶ negotiations. !| In some instances t e Board is permitted to require restoration of t e ((  = $( as a remedy *| -   . 1969): ? e court found t at G.S. but also limits t e remedial powers of t e Board À| ? e Board¶s remedial § 10 powers are broad but limited to carrying out t e policies of t e Act. À| Congress found in 1947 t at t e Board ad been going too far and amended t e act to prevent t e Board from taking more and more control of t e terms of CBA¶s À| Congress added t e non-compulsion provision to § 8 (d). wit out any official compulsion over t e actual terms of t e K. owever.2d 736 (2d Cir. would seem to fit wit in § 8(d)¶s statement of t e ³mutual obligation´ of t e parties ³to meet at reasonable times and confer in good fait !| Boulwarism: W ere t e company soug t to avoid last minute 11t our bargaining due to unrealistic initial bargaining positions. Powers are limited to t e policies of t e Act and t e Board as no power to direct t e substantive terms of a CBA in violation of t e freedom to K. 418 F. t e Board¶s rem. wit t e court¶s approval ordered t e EE¶r w o ad unilaterally contracted out t e unit work ( a mandatory bargaining subject) and laid of t e unit EE¶s. 203 (1964): ? e Board.

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would t en call in Fed¶l @ediation Conciliation service and go into mediation.r to accept responsibility as t oug e ad agreed to t e contractual provision *| ? e áissenting members: ? e rule against speculative damages targets speculative injury²not amounts.  cc   c  À| First time Bargaining: ? e success rates of newly certified units in ac ieving first time CBA¶s is low²around 55±57%. If not w/i 90 days..C.failure to s are .grievance arbitration !| Are t ere certain areas         (demanded by union of employer) is an 8(a)(5) violation? Can t is be a per se violation of 8a5 or do we always look at totality of circumstances (bad fait ). Disclosure Obligations If can¶t regulate tactics (e. t en board as power to reinstate t e status quo before you engage in unilateral activity. Cir. À| m#?    (1956) . ? is K would last for two years instead of t ree. 98 | L a b o r L a w . aere t e injury is t e failure to bargain depriving t e workers of t eir statutory rig ts²damages may always be calculated. Interest arbitrators appointed by F@CS would set terms of t e agreement ( ow many terms would t ey set? pnclear in legislation). slowdowns) b/c t ey are core. !| Over alf of all pLP c arges occur in t e context of first-time bargaining !| ? e G. 185 mLRB 107 (1970): ALJ recommended t at t e Board make t e EE¶s w ole for all monetary losses sustained as a result of t e company¶s unlawful refusal to bargain. Only t e á. À| Retroactive Relief: If ongoing bargaining relations ip. !| Is this a violation of a. !| Facts: pnion representative asked for wage increase. are t ere areas in t e context of 8a5 w ere t e board does regulate tactics or create obligations. t e power to get a remedy as a lot more bite b/c ave an obligation to bargain to impasse w/o altering terms/conditions of emel. ? e employer said it couldn¶t afford to pay t e increase so t e union asked t e company to produce evidence substantiating t is claim. and t at obligation is breac ed.) !| NO? a common remedy. If no K after anot er 90 days. À| Interest Arbitration: Once card majority certified. union would request bargaining and w/i 10 days employer must bargain. likes t is type of relief.C. F@CS rules.g. ad urged t e board to make greater use of 10(j) relief and/or ³special remedies´ as part of t e Board¶s order in t e first K cases !| Make-Whole Relief: 51 ""1 . (% case. ? e Board eld t at it lacked t e aut ority to permit t e punis ment of a particular respondent and t at t e EEr¶s refusal to bargain wit t e newly certified union was in t e exercise of its rig t to seek judicial review of t e boards rejection of its objections to t e election *| Essentially t e remedy would require t e EE¶r to compensate t e EE¶s for losses t ey incurred as a consequence of t eir EEr¶s failure to agree to a K e would ave agreed to if e ad bargained in good fait *| aig ly speculative and would require t e EE.  ? EmOR@OpS tension. goes to arbitration.

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Just said t ey wanted t e extra billion. If t ey ad said it was for financial necessity would ave needed to divulge financial records according to t is case. can¶t do t eir jobs. 4"/$3 (0(0 "%4-('( ) Bp? w y s ould t e assumption of t e court be t at t e union would use t e info.  cc   c  !| aolding: Board applied t e wrong standard by ruling t at employer¶s failure to supply financial info. !| Reasoning: Agree w/ t e Board on t e facts. À| á   „     m# (1979) . Also. ? us.. $ 4 2' 4/ . gave unilateral c ange in conditions of employment but sick-leave days !| aolding: ? e employer can¶t make any c anges until impasse. so don¶t disturb finding t at must s are t e info. @ust look at ?O?ALI?Y. If wages go up above w ere t e prior K provided. but failure t at union needs to successfully engage in grievance arbitration. so t e job was filled w/ an applicant from outside t e bargaining unit. w at kind of c anges can t e employer make? pnderlying concern = at some point employers ave to be free to respond to market c anges. !| Reasoning: *| @ust protect integrity of t e test. real issue ere is asymmetrical information.3"  ( 0 1 $'/ (  ''3 ""/ 4(( $ 40"33!- !| mot a failure to s are info. *| 4"J0!%!%'%!0($@ 99 | L a b o r L a w . Plead t at you can¶t afford to pay t en ave to give up t e records. À| NFL Labor Dispute: Careful ow t ey crafted refusal for financial records. you can say it¶s not really a regulation of tactics like '$$ Impasse W en you reac moment of impasse. w at factors get considered? Goes to remedy (board order). but won¶t say it¶s true in every case. !| motes: *| Still interpreted as a per se rule. in a negative way. but none of t em received an acceptable score on a battery of aptitude tests. and so if you put up a defense of failure to pay. !| aolding: Employees must agree to ave t e records divulged. t e employer as an interest in being able to respond to t at c ange in order to not lose is employees. ( (  (0% (/ $ ("'0'-(02"%($$(0(($(%+4 ( $$!$(%((0(( !| ( . ? is tension becomes difficult in t e sit À| m#" (1962) !| Facts: After bargaining w/ union. !| Facts:?en employees applied for promotions. Can¶t say competitive advantage b/c t e league doesn¶t really compete against any ot er serious league. to t e union constituted per se a refusal to bargain in good fait and so t e case s ould be returned to t e board. in order to create bargaining relations ip. (Just need a skilled negotiator. you c ill t e dialogue. If you don¶t s are enoug info.) *| Bargaining is about a dialogue. W en obligation. Board ordered test scores of employees. mot REALLY a regulation of a tactic. At w at point is employer permitted to act? Want entrepreneurial discretion but don¶t want to undermine t e ability of t e union to ave voice as to w at t e new K s ould include from t e perspective of t e workers. Enters remedy side.2$.

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!| Permanent replacements after impasse w/ allegation of 8a5 violation.$(. !| Following impasse. !| Implementation OK upon impasse. as done itself to control does t e fact t at t ere¶s t is waiver continue after t e K? Or does t e clause expire and t e employer to continue to control w at it could under t e K is t e employer permitted to make c anges t e same as it could under t e K (or b/c mandatory subject must bargain to impasse before making seame c anges). Waiver of obligation to bargain. !| W at is status quo? *| C eck-off is not included (parties must explicitly agree). Engaging in unilateral c ange is a tactic t at puts pressure on t e union prior to agreement. !| Constrains ability of employer to respond to market forces. an employer may lawfully implement ³proposals rsbly compre ended w/i t ose it offered before impasse.  cc   c  !| Reasoning: pnilateral action w/o discussion wit t e union does amt to a refusal to negotiate about t e affected conditions of employment under negotiation and necessarily obstruct bargaining. !| áifferent opinions on t e sick leave policy presents a problem. Real tension w/$  . Final offer and less favorable alt. Just ardball bargaining. mo operating of an explicit waiver of t e statutory rig t to strike. À| If a pnion as t e ability to strike prior to impasse. Can¶t strike/lockout until you go before t is governmental body for a determination. rig ts clause and looks at past practice. WaY? Breaks t e impasse and t/f encourages future collective bargaining. do t e terms of it wiaivng t ese rig ts end rig t w en t e K expires or does it continue on? !| @gmt rig ts clause .means t at employer gets complete discretion during bargaining. Courts ave looked at way employer as operated under mgmt. piecemeal impasse) in all circuits except t e 5t . 100 | L a b o r L a w . À| W ic terms survive t e expiration of t e K during bargaining. can t e employer ave t e rig t to lockout before impasse? ? is as never been clarified by t e Supreme Court. À| Items going to core of § 7 rig ts. @ost c anges in 8(7 itself áIá undermine role of t e union. À| Letting employers do t is early on seems to be a tactic. before impasse? !| c$%$ c 4 . À| Impasse: Fed¶l mediation body determines w en t ere is impasse. !| ?elescope Casual Furniture (mLRB 1998): an employer may use t e implementation of less favorable proposals as a bargaining tactic. *| mo-strike clauses are not part of t e continued status quo. Bp? stagnancy mig t pressure bot parties into negotiation. c eck- off can¶t continue. must bargain. If not. @erit employees only given to 20 employees out of 50. À| K clause w ere employees agreed to cross picket lines to deliver goods. !| @ust be overall (vs. Employer taking unilateral control over merit increases. !| Individual statutory rig ts. áid employer commonly operate control over t is topic? If so. W en K expires.´ ?aft Broadcasting (mLRB 1967). can continue to do so until new K comes into being. no longer ave wavier operating so does everyt ing t at mgmt. So w en K expires.arbitration clauses don¶t go past pd of w en K expires b/c t ey are consensual in nature. motion t at you can¶t waive individual statutory rig ts unless t e K explicitly does it. So if K expires. presented.

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See 8a5 and 8d. Mandatory/Permissive Subjects of Bargaining À| 0-$%3 4A'(: (1) mandatory.Bargaining about ow you want to market goods. t e employees ave to try and accept t at final last offer by t e employer and t e injunction as to be lifted. if don¶t come to agreement. !| @gmt rig ts clauses become t e problem..  cc   c  *| áuty to arbitrate doesn¶t continue (t oug grievance process does). etc. *| $$"7. bargaining. closing down your w ole business is ok. ($%(/111!$%$$$ !0( !""0$%!$(0%  $(0"/'( ""/$(( À| Permissive . See page 509.0( $% "4"$. !| Implicit notion of no impasse if employer willing to do more. can¶t bargain away certain rig ts on distribution of literature or access. À| Mandatory . À| National Emergencies: Private sector strikes. Issue w/ employer-controlled entitlements. pndermines role of union as bargaining agent if you offer more (not a tactic---suggests not at impasse). Goes to t ings in t e market. can intervene. ALSO.($. and request t at t e gov¶t go to t e court and get an injunction against a strike by a pnion t at would endanger ealt /safety. Could ave an 8a3 violation over some of t ese decisions if motivated by anti-union intent. ow to manufacture a certain type of car . can¶t by K agree t at a competing union at appropriate times would not be allowed to distribute literature. coll. *| $$ !2$. ave a commission provide a report of t e risk to nat¶l ealt /safety.somet ing more environmentally friendly. If come to agreement. À| Mandatory/Permissive Framework !| m# . w ic part of issues can t e employer not act on pmLESS t e employer first bargains? !| Closing part of business . !| If already ad subcontracting. not about wages. À| Notice and ³Cooling-Off´ Periods: 90 day period. ours.@ust deal w/ wages. Can offer less and decide t ere¶s impasse and t en go w/ less (tactic). À| Illegal . could continue to maintain subcontracting after impasse. Go to internal operations of unions. ours. (( (/ . a pnion trying to get employer to agree t at t e employer would engage in a secondary boycott against a competitor employer. (3) illegal. w en we intro. !| Waivers of employee¶s statutory rig ts.do you ave to bargain? pnder "$. Injunction runs for 60 days w ere commission continues to determine ealt /safety effects. and ot er terms and conditions of employment. etc. ? e pres. and ot er terms and conditions. mandatory to waive access to a court to resolve an individual employee¶s rig ts under ?itle VII or a disability statute.statutory rig ts of employees. (2) permissive.

 (1958) *| Facts: ? e company submitted a ³package´ proposal covering economic issues but made t e offer contingent upon a ballot clause (req. employees to vote before union can aut orize strike) 101 | L a b o r L a w .

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You can bargain about it but t e court is not comfortable w/ employer conditioning a final agreement on t e clause. À| ?   . It controls t e way t e union makes decisions.  cc   c  *| Issue: If t e union can insist on a no-strike clause. w y can¶t t e employer insist on t e process for t e no-strike clause? *| Court: À| ?    : ? is really goes to aOW t e union makes decisions.

$$. *| Union can¶t use economic pressure (e. agreements dealing w/ mandatory subjects are unlawful w/o t e consent of t e ot er party *| t e controlling party must bargain in good fait to impasse before implementing c anges concerning t e subject !| Cafeteria Example: Is it mandatory to bargain over prices in an employer-operated cafeteria. t ere t e mandatory/permissive c aracterization as uge consequences. strike) to achieve permissive subjects of bargaining.@ !| Five Consequences for defining a subject as ³mandatory´: *| t e party w o would control t e topic unilaterally absent bargaining obligations must bargain about decisions concerning t e topic *| t e noncontrolling party may use economic leverage *| if employees strike over t e employer¶s failure to bargain.´ *| Getting around this: Insist on a certain mandatory subject Amá implicitly let it be known t at you¶ll budge if you get t e permissive subject.   : may actually be illegal. *| áissent: @ust do a case-by-case analysis w/ eac clause. !| Unilaterally implementing merit pay: aow deeply into t e concept does t e employer ave to bargain before unilateral c ange.  () $( "". ? e rig t to insist is t e rig t to ³bargain. of t e employees. !| Midterm Bargaining: Subject gets isolated b/c of decision of employer to act unilaterally outside of bargaining.$  "$. *|  "(: Calling t ings mandatory means t at t e employer will ave to meet and confer w/ union over t e subjects. Seems to be inconsistent w/ t e statute itself t at it would evade t e duty to bargain w/ t e certified rep. board says even t oug bargained and 102 | L a b o r L a w ."@  (0 %($'($""/0"(3'"((4. Give t e ³conditions of employment´ clause an expansive reading. t ey will be treated as pLPs and strikers will get t eir jobs back after t e strike is over *| midterm modifications of aspects of coll. Gives t e pnions voice. In case. Bp? if t e employer wants to introduce a new..g. significant tec onlogy w/ a product t at will result in some layoffs (effects) t at may be a mandatory subject of bargaining but t e decision to invest in t e tec nology itself would be permissive (go to ³core of entrepreneurial decisionmaking´). Case law says lateral impact on t e compensation of t e workers. (0%'$A ( ('('"$@ *| 0/ $( A ( "( (0 ( 3"/ 4.

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t e arbitrator can OmLY deal w/ mandatory subjects of bargaining. !| Should we get rid of this framework???Look at remaining cases---are t ey justification for retaining t e distinction or s ould we still just get rid of it (part of recommended reform)? !| Note: Card-Check and Neutrality Provisions *| Card-Check *| Neutrality:mot clear w et er mandatory/permissive. À| áoes bargaining on t e issue promote collective bargaining? 103 | L a b o r L a w . nevert eless didn¶t bargain sufficiently about t e objective standards. *| General test not used. !| Interest Arbitration: Can agree t at any issues unresolved by negotiations would be submitted to determination by an arbitrator. must look at w at constitutes t e mandatory '$(5( of t at topic. Company said maintenance work was too economically burdensome. 8a4. mo real alteration of t e Company¶s basic operation (just labor costs). . *| Concurrence (Stewart): If decision deals w/ scope and direction of company. insubstantial. But t e court says w ere t e decision involves strictly labor costs. ' "('0/. rate is uncertain. !| Salary Arbitration Processin Baseball Context: $%(/ subject of bargaining. not permissive subjects of bargaining. À| pnion alleged violations of 8a2. @ay never know b/c t ere are ways not to agree to mandatory subjects if you don¶t get w at you want on t e permissive side. !| Retiree Benefits: ((4 .0"("  (1971) *| Facts: Bargaining over retiree benefits is a common industrial practice. and 8a5. À| Status of Major Entrepreneurial Decisions !| -   . W ile permissive. Retirees don¶t fit w/i t e statutory definition of employee under t e bargaining unit. Beefits are speculative. s ould not be mandatory. t e topic is 2. If t e union wants to instead of striking.  cc   c  trying to implement. not retirees. making t at decision mandatory subject would promote collective bargaining and t e goals of t e mLRA. and t e relations ip b/t t e inclusion of retirees and t e overall ins. even if you agree on it w en you reac interest arbitration.   m#(1964) *| Facts: Employer contracted out t e maintenance work for cost-savings. *| aolding: Retiree benefits is a 2 subject. *| Reasoning: mLRA covers workers. Seems to be in direct interest of t e workers. *| aolding: *| Reasoning: ? e continued employment of t e employees is as a result at stake. *| W/ any particular topic. W en union found out t ey establis ed a picket line at t e company¶s plant.

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Bargaining not likely to make a contribution to decision-making process.. the subject will be mandatory. Control´: Lack suff.  cc   c  *| Subcontracting: áoesn¶t it always involve a removal of work prev. *| Sale and Franchise Arrangements:  case !| -m     m# (1981) *| Facts: Employer wants to close a part of its business (w/ nursing ome). Employees get organized during interval and request to bargain. !| ? e decision was a c ange in t e operations. direct impact on job security and working conditions. !| If t e primary reason for t e decision is labor costs. K called for reimbursing Fm@ for cost of labor plus weekly fee. À| A weig ing test. !| á  8 . À| One seems to say decision over partial closings are not mandatory (only effects): !| áue to need for speed in circumstances. À| ? en t e second section of t e olding talks about limitations. performed by t e bargaining unit? aow is t is different? *| Decisions at the ³Core of Entr. Give notice to workers t eir positions were terminated. *| If operations are not c anged. À| Removing t at fear of remedy from decision making process w en speed/secrecy are necessary. (leaving t e market of Greenpark) *| Is t e logic of Ozark overruled by Fm@? In t is case t ere was no c ange in t e operations of t e company. secrecy. *| aolding:If there is a benefit to labor management relations from bargaining on the subject that is not outweighed by the burden placed on conduct of business. *| ? e two sections of t e opinions are somew at at odds. !| ? ere may be no ot er c oice for t e Er. Fm@ loses money if t e bargain. mo impact on product market. !| pncertainty in t e COA presumption combined wit ars remedies are too costly. do t e interests of EE/pnion outweig management rig ts? *| ? e court wanted a clear-cut rule to alleviate uncertainty. t en t e Er as every incentive to bargain voluntarily.

but t e plant eventually closes due to economic issues.' $("! *| Facts: aog slaug ter ouse/processing. Agreement is signed to keep 900 jobs in áubuque.  (mLRB 1991) . Employer decides to move t e slaug tering to a different location. À| Was t is relocation a subject of mandatory bargaining? *| ?est: GC must carry burden t at work was relocated and t ere was no c ange in operations. ? en employer must s ow 104 | L a b o r L a w . t is establis es prima facie case of pLP.

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not just sub-K based on labor costs. *| W at does t e management decision most look like? ? en apply t e test t at applies to t e decision t at is most analogous.  cc   c  t e work actually did vary in nature. or work was not relocated. À| @ajor criticism: often too late for t e pnion to exact any adequate concessions. !| Rationale: Board as up eld @EBp¶s as a factor in effectuating t e policy of promoting labor peace t roug strengt ened collective bargaining and as taken steps to increase stability of @EBp¶s including ² *| Issuing guidelines for wit drawal *| Eit er party may wit draw wit notice before bargaining *| After Bargaining parties may wit draw from @EBp wit mutual consent of t e @EBp and pnion. and your closing will put out at least 50. 1982) !| Facts: Bonanno belonged to a multi-employer bargaining unit (@EBp) and began bargaining wit pnion. or 105 | L a b o r L a w . À| ? e need for certainty in a rule will increase wit an increase in severity of remedy. *| Circuit split on w et er áubuque is consistent wit Fm@. À| Burden on the Employer in t e &  test is incorporated into requirement of a s owing of c ange in scope and direction. as t e Case actually olds. *| Remedy could still be severe in work relocation. After a year Bonanno ired replacements and notified t e union and t e @EBp t ey were wit drawing from t e unit. or t ere was a c ange in scope and directions of operations. but maybe not as much as partial closing. !| Application of t e tests seems to be by category: sub-K. !| Regardless of t ese tests. !| WARm Act: *| If you ave a firm of at least 100 employees. *| -   as been applied to ALL Sub-k. À| Severance pay or preference in iring at new locations would be effects concessions. W en t ey reac ed an Impasse over compensation t e pnion W ipsawed t em and t e ot er EE¶rs locked-out. 60 days¶ notice must be given to pnion. t ere is always a duty to bargain over EFFEC?S. partial closing. or even if t ere were labor costs. *| ? is mig t give some bite to effects bargaining. Multiemployer and Multiunion Union Bargaining À|   #   m# (U. À| Benefit for labor managementrelations in t e &  ?est is incorporated into t e requirement t at labor costs not involved or union not making adequate concession. work relocation. pnion soon settled on compensation and tried to old Bonanno to t e new K saying t ey ad never consented to t e wit drawal !| aolding: An impasse is not an unusual circumstance justifying unilateral wit drawal from a @EBp once bargaining as already begun. t ere were no concessions t e pnion could ave made.S.

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  cc   c  À| If t ere are unusual circumstances *| ? e BmLRB found in 1/ ""4% t at an Impasse is not an unusual circumstance because it is usually only a temporary deadlock and *| may be a tool for furt ering bargaining *| ? e attempted bargaining wit individual EE¶rs in t e @EBp also was not an unusual circumstance because it was not destructive of t e unit. alt oug *| bargaining for agreements t at would survive t e group bargaining K or would allow t e union or EE¶r to escape its effects destroy t e bargaining unit and would be = failure to bargain pLP and = an unusual circumstance À| Unusual Circumstances: !| Violence and property damage by t e union may count. alt oug not argued in $$$ !| m#  a .

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Remedy for unilateral midterm modification is breac of K not pLP. mow you ave a competitive market place.S.: Failure of t e @EBp to fairly represent some of its members were unusual circumstances justifying t e wit drawal of t ose members À| W y is t ere not more multiemployer bargaining? !| In Europe. § 8(d) embraces only mandatory topics of bargaining. We are unique in t at. too muc variation in t e employees. *| pnclear about t e common market. Midterm Bargaining À| m  * . . w ere t e players are not companies in a sector. t e parties don¶t make t at t e mandatory subject of future bargaining áu . CBAs are set across t e entire sector of t e economy.    !         * ""% 0  2  ((  "( " (1971): @idterm modifications of clauses in a labor agreement dealing w/ permissive subjects do not violate t e statutory duty to bargain. À| aospitals are not going to be likely. *| Coalition bargaining is permissible. but t e nations in t e sector.) *| Or w en t ere are multiple plants (wit different unions) in a single employer. and lots of bargaining units in one company. *| mo concept of t e individual bargaining unit. pnions try to coordinate negotiations at t e same time and bargain as a unified front.  À| ‘   ‘. By once bargaining and agreeing on a permissive subject. (ár¶s don¶t want to bargain alongside maintenance. !| Very little in t e p. but you cannot insist on it. *| One company. t is is t e model.

 106 | L a b o r L a w .S. § 8 (d) (4) only pro ibits midterm alteration of clauses t at address mandatory bargaining subjects. 157 (1971) !| aolding:@idterm modifications of clauses in a labor agreement dealing wit permissive subjects to not violate t e statutory duty to bargain. 404 U. !| Rationale: § 8 (d)(4) requires t at a party proposing a modification continue in full force and effect all t e terms and conditions of t e exiting K until its expiration *| But t e Court must look to t e provisions of t e w ole law and to its object and policy *| § 8 (d) encompasses only mandatory subjects of bargaining *| Read (.. $ .

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  cc   c  *| Regulates modifications and terminations so as to facilitate agreement in t e place of economic warfare *| Bargaining on permissive subjects does not make t ose subjects mandatory in t e future *| Since t e parties were not required to bargain as to permissive subjects. t e purpose of facilitating accord on t e proposal Is not on pint w ere one party seeks to modify permissive terms *| ? e remedy for mid-term unilateral modification to a permissive term is BOK no pLP    À|    .

? e parties never discussed pension plans.³clear and unmistakable´---item in issue must ave been fully discussed or consciously explored ad t e union must ave consciously yielded or relinquis ed in t e give and take of negotiations. Or you could say t at § 8(d) only requires you to bargain about mandatory subjects t at were not discussed during t e negotiations *| ? e Pension ad never been raised.   !| ³Zipper´ Clauses: ³zip up´ t e agreement to preclude any furt er bargaining during its term. and as a mandatory subject of bargaining it may be raised and bargaining required during t e midterm *| ? e insurance ad been raised and was dropped. and t e EE¶r unilaterally modified it²it was bargained for and t e bargaining s ow t at it was understood to remain unc anged during t e term of t e agreement *| %( parties are obliged to discuss mandatory subjects t at are not covered by t e CBA À| Encourages labor peace and À| Simplifies and speeds t e process of bargaining because it removes pressure to negotiate and reac agreement as to all t ings t at mig t become important in t e future  !| ³Clear and unmistakable´ waiver: 8(d) doesn¶t relieve an employer of t e duty to bargain over subjects neit er discussed in negotiations nor incorporated as terms of t e agreement. t e employer) of its duty to bargain before initiating 107 | L a b o r L a w . but do not relieve t e ot er side (usu. !| Rationale: You could say t at under § 8(d). 94 NLRB 1214 (1951) !| Facts: ? e EE¶r and EE union bargain in 1948 and reac a 2-year agreement w ere t ey left open t e option for renegotiation as to wages after one year. but not mandatory subjects bargained for yet not explicitly covered. zipper clauses (561-62) = waiver of eit er side¶s rig t to insist on bargaining over its proposals to add new terms. Only discussions constituting a ³waiver´ will ave t is effect. Gen. ?est . during t e term of t e agreement you don¶t ave to bargain at all. but did discuss and t en drop group insurance coverage²w ere t e EE¶r subsequently improved t e benefits !| aolding: @andatory subjects of bargaining not covered by t e CBA and not negotiated on must be bargained for if raised during midterm bargaining. Or you could say t at you do ave to bargain about all mandatory subjects w ere t ere was no agreement during t e renegotiation. .

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  cc   c  unilateral c anges in existing conditions of employment. t e expectation of t e turkey as in t e K. in '4). @pS? bargain to impasse before unilateral action on topics not covered by an agreement absent K language (per aps sup. regardless of a zipper clause. § 8(d) (assuming proper notice and ex austion of t e cooling-off pd). t e union may strike viol. *| Christmas ?urkey example áoes t is past practice est. # Ê eld w ere K provides a reopener pd on a term. aave to maintain t e terms of t e agreement t at your negotiations suggested t ey accepted t e rejection by t e employer (ins.  !| Midterm Strikes: A strike during t e term of an agreement may constitute a breac of t e no-strike clause even if Jacobs subject. by bargaining istory) t at manifests a ³clear and unmistakable´ relinquis ment of bargaining rig ts w/ respect to t e particular matter involved.   À|    .  !| Unilateral Changes During ?erm of Agreement: Employers.

(mLRB 1984) .0(/' !|    .4..$$..

t is transfer of work is a mandatory subject of bargaining. transferred assembly ops from unionized facility to unorganized facility. t e employer cannot act unilaterally unless it as p agreement under §§ 8(a)(5) and 8(a)(3).  À| Recognition provision? mLRB refuses to read rig ts into recognition clauses t at ³merely recognized t e Ks¶ coverage of specified employees. ? is interpretation was very constraining on employers w o made decisions even for solely economic reasons.  *| Issue is § 8(d) duty to get p consent before implementing unilateral c ange t at modifies t e terms and conditions contained in a CBA.  108 | L a b o r L a w . ? e p rejected it but t e employer moved anyway. !| Reasoning: *| @ust identify a specified term of t e K t at t e company¶s decision modified. ? e parties stipulate t at t e decision was economically motivated (not union animus) and t e Respondent as satisfied its obligation to bargain over t e decision and was willing to bargain over t e decision. Board says as to mandatory subject during term of t e agreement. and so didn¶t violate and wage/benefit provisions of t e K. !| aolding: ? e Board will not find a K modification violation unless it identifies a ³specific term contained in t e K´ t at as been modified. ? e employer proposed t e move b/c lost a deal.. t ere is no legal/factual basis for an 8(a)(3) violation eit er. À| Wage/Benefits Provision? ? e employer didn¶t disturb t e wages and benefits at its @ilwaukee facility. just moved t e work to a different plant w/ different workers. S ould ave wrote in a work-preservation clause. during term of CBA and w/o p¶s consent. !| Issue: W et er a commitment to continue operations at @ilwaukee was contained in t e agreement (t e wage clause) and t/f not subject to modification even after bargaining. !| Facts: Employer..´ *| aaving no basis for an 8(a)(5). ? is is a breac of t e wage clause b/c only trying to move it to pay lower wages. mot ing required t e employer to keep t e bargaining unit work in @ilwaukee plant.

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 *| t e employer was not motivated by union animus. or in any way seeking to undermine t e p¶s status.  Arbitration & 8(a)(5)/ @ust demand arbitration 8(d) violation ['4] as violating t e K. m   Arbitration []  ‰0(%($(4$(08+$($(08@Œ*E "$% $(-4"F!2. aad t ey argued on t e K.Œ*9 "     À| Effect of Zipper and Mgmt Rights Clauses on Midterm Bargaining Duties: B/c t e p tried to rely on § 8(d) instead of t e K. acting in bad fait .   . p at better position to evaluate decisions.       UNILA?ERAL CaANGES    .  !| Statutory or Contractual Remedy/Jurisdiction?? e board generally will not find an pLP and t us will leave a p to contractual remedies before an arbitrator if: *| ? e employer¶s interpretation of its K rig ts as a ³sound arguable basis in t e K´ Amá. @akes employer disclose labor costs as reason for move and allows ps to volunteer wage or ot er concessions. !|    . t e p gave away t e issue (assumed t at t e Company acted pursuant to a rig t under t e agreement).  cc   c  *| Policy: t is encourages trut ful midterm bargaining over decisions to transfer unit work. t is would ave gone to arbitration re: unilateral action w/ respect to a mandatory subject.

.. teaches us to go to arbitration! !| .      +   .

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À| @gmt rig ts clause K interpretation: Look at bargaining istory.   109 | L a b o r L a w .  . can¶t transfer work. past practice. clause is drafted.  "   < !| Will no longer see t ese cases b/c courts/board is pus ing t is back into t e K. meed explicit clauses saying can¶t subcontract. look at ow mgmt. If vague. and strengt of mgmt. rig ts clause itself.

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‘.  cc   c    ÷ ÷÷ c÷    ÷   ÷    Strikes and Employer Countermeasures À| Economic Pressures and the Duty to Bargain !| m#.

and s ouldn¶t be regulated t roug §§ 8(a)(5) and 8(b)(3). S.Ct.  . position t at t e use of economic weapons is generally not inconsistent w/ GF bargaining. Should be regulated through antidiscrimination principle embodied in ·· 8(a)(3) and 8(b)(2). !| m  *?    „    .  (1960): emp asizes role of strikes and eco. conflict.

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*| Employer . Also may be supported by ancillary pressures (picketing of t e premises/operations of suppliers/customers). À| Strikers and Replacements  !| ? Mackay Radioá    *| Fundamental : áid § 7 protection of rig t to strike s ift t e entitlement of t e employer to running t e business to t e p in t e rig t to strike? *| m#  (1938) . À| Board made clear t at a conventional peaceful strike doesn¶t suspend t e employer¶s duty to bargain.principal weapon = @AIm?AImImG OPERA?IOmS. broug t in personnel from ot er offices to San Fran. À| Success depends on !| profitability of t e firm and ability to raise prices w/o losing market position !| ability of t e p to impose prod. losses on t e firm !| financial resources of t e firm to w/stand losses !| t e financial resources of employees to w/stand losses..principal weapon = S?RIKES (Collective w/drawal of services of represented employees). Also. ? e strike was unsuccessful and t e union allowed t e body of strikers to return except for 11 EE¶s w o ad been active in t e union²t ose 110 | L a b o r L a w .          *| Labor ."//$($! À| Facts: Wireless communications Co. offering t em permanent employment. In response to a general strike. lockouts (refusal to allow employees to work pending t e resolution of t e dispute).

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  *| to the decision to declare that an employer may maintain operations w/ the aid of permanent replacements. ? us § 13 protects workers¶ rig t to strike but does not pro ibit EE¶rs from protecting and continuing t eir business !| But Strikers retain t eir EE status during t e strike under § 2 (3) of t e Act !| ? e evidence supports t e finding t at t e preparation and use of t e list. were wit t e purpose to discriminate against t ose most active in t e union.  cc   c  ad to apply for reinstatement.S. *| Replacement Workers and Congressional Intent of the Act? 111 | L a b o r L a w . *| #   + 171 NLRB 1366 (1968): Economic workers w o unconditionally apply for reinstatement at a time w en t eir position s are filled by permanent replacements: À| Remain EE¶s and !| Are entitled to full reinstatement upon t e departure of t e replacements unless t ey ave in t e meantime acquired regular and substantially equivalent employment.(( $%  4($(" 4 $ A (3'($ for is failure to reinstate workers. w ile maintaining a temporarily reduced rate or operations. after operations increased 2 mont s later. 380 U. w o were still EE¶s. but EE¶r said t at it could not reinstate workers due to decreased operations. 2 @ont s later operations increased and EE¶r ired new laborers rat er t an reinstate old EE¶s À| aolding: ? e refusal to reinstate striking workers. or t e EE¶r violates t e Act wit out regard to its intent or antiunion motivation. and action taken by t e EE¶r. requiring t e EE¶r to ire more workers was an pLP in violation of §§ 8(a)(1).(( $%  4($(" 4 $$. or !| 0 3"  ( 33 3 "" $(( ! 3 ". (a)(3) À| Rationale: An striker remains an EE of t e EE¶r until reinstated or e acquires regular and substantially equivalent employment !| Refusal to reinstate any of t e striking workers ad discouraged EE¶s from engaging in protected activity !| EE¶r must s ow ". 375 (1967) À| Facts: EE¶r lost 50% of its workforce during strike and ired replacements. Strike ended. and t erefore constituted an §§8(1) and 8(3) violation.  *| m#-  ?  . pltimately only 6 of t e replacements stayed and so only 5 strikers were not able to come back À| aolding: ? e EE¶r discriminated against EE¶s active in t e union w en it allowed all but 5 to be reinstated on t e basis of union activity  À| Rationale: It is not an pLP to replace striking workers and to offer replacement workers permanent placement in exc ange for accepting t e employment during t e strike.

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" À| ?aft-aartley would later codify permanent replacement in 1947 by stating t at replaced workers do not get a vote on Board elections.  cc   c  À| '-/ declares t e legitimacy of iring replacements to continue business. and by organized labor itself. t e Board. but w ere t ere was no pLP t e strikers ad no legal claim to restoration. and !| ? e strike will end wit a settlement requiring t e displacement of perm. and !| EE¶r doesn¶t know if it will be caug t b/w aving to let go perm. À| ? e Leg. . consistent wit t e law as understood by its framers.3. but stating t at EE¶rs mig t reasonably require t e EE¶s to c eck in at reasonable intervals as to w et er t ey still desired reinstatement À| No duty of full-disclosure: EE¶r¶s may inform organizing workers of t e rig t to ire permanent replacements in t e event of a strike wit out informing t em of t eir Laidlaw rig ts wit out committing a pLP !| .  m 99: If t e strike was based on EE¶r pLP t en t e board may reinstate workers to t eir jobs wit out prejudice. It was in fact. 112 | L a b o r L a w . Replacements and facing mandatory reinstatements wit backpay to striking workers À| Is t e duty of loyalty ²not to take action inconsistent wit t e continuation of t e employment relations ip² one-sided? !| pnder 33$($%%: workers owed a duty of loyalty to t e firm and were not protected w en t ey engaged in product disparagement picketing in t e course of t e strike !| W y can EE¶rs take actions t at would effectively terminate t e relations ip but not EE¶s À| EE¶rs face 2 risks w en iring replacements !| ? at t e strike will be deemed a pLP strike. ³? e '-/ doctrine was not a judicial effort to minimize t e pro-labor goals of t e original Wagner Act. À| ? ere remains an element of risk for bot parties w en strikes occur because neit er knows w et er t e Board will up old a pLP: !| So labor doesn¶t know if t e strike will likely result in being permanently replaced.C." ($'+ $' 281 mLRB 515 (1982): EE¶r statements t at are consistent wit t e law cannot be c aracterized as coercive !|    ""!/  + 281 mLRB 262 (1985): EE¶r violation w ere it told EE¶s t at it would ³ ave to terminate and replace´ EE¶s w o did not return to work. ax of t e Act supports t e conclusion t at EE¶rs may ire replacement workers during a strike at will. Replacement workers by returning strikers À| ?ime limits? !| -'0. 202 mLRB 634 (1973): Rejecting time limits on Laidlaw rig ts. conceded t e point and !| Based on precedent À| m#. but t is declaration was immaterial to t e final opinion !| G.

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t e employer. Strikers must be Yes. reinstated. Bp? absent suc a s owing. À| -  : ? e failure to reinstate discourages employees from engaging in protected activityand t/f violates §§ 8(a)(1) and 8(a)(3).t e failure to offer full reinstatement was for legitimate and substantial business reasons.   „    Permanent ?emporary Economic Yes. violated t e act. w/o regard to its intent or antiunion motivation. but employees ave Yes. c%"! rig ts. *| m  *    ‘. ULP mo. ? e employer can s ow it was done for legitimate and substantial business justifications to rebut t e c arge. À| # :Strikers w o apply for reinstatement w en positions are filled by permanent replacements: (1) remain employees and (2) are entitled to fill reinstatement pmLESS .acquired equivalent employment or . !| áuration of c%"! rig ts unclear.

: Œ:6>*: Replacement Workers are not preempted from bringing state law BOK suits against EE¶rs. 103 LRR@ 1238 (1979): pnion may lawfully seek to parcel out a limited number of jobs b/w strikers and permanent replacements on a nondiscriminatory basis suc as seniority and/or job classifications  !| "-$ 2  "+ .H>    . Case mo. not way of employer trying to undermine status of t e p. À| Displacement of Replacement Workers: Seems to suggest no pLP. not intended to be discriminatory/misused. Also eld t at EE¶rs could make a promise of continued employment subject to any settlement agreement wit out sacrificing '-/ rig ts to insist on retention for t e permanent replacements 113 | L a b o r L a w . !| $(% ("!- 3  . 8-CB-3963.$()" )$3 '0$( (2d Cir. @ust be careful re trying to deter workers from striking by telling t em t ey could lose t eir jobs by permanent replacements. @ay file c arge against employer for not telling employees t e full scope of t eir rig ts. 1975) sustained an agreement extinguis ing all reinstatement rig ts 4 1/2 mont s after t e strike was settled b/c pd not unrsbly s ort. and was t e result of GF bargaining.   À| Waiver of #  Rights?@ay be a breac of t e áFR by a p.

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. !| áoesn¶t necessarily violate a no-strike clause in a CBA. Replacements cannot vote at all during pLP strike. etc.  . content of union leaflets and picket signs. it is deemed a pLP strike so long as motivated in part by t e pLP. a finding of causal connection b/t t e employer¶s conduct and t e continuation of t e strike coverts t e strike into a pLP strike (even if not even a predominate factor). claim forms. !| W ere caused by bot impasse and a pLP..  cc   c     *| m  *#. !| pLP strike does not constitute a strike w ose object is t e ³termination or modification´ of an agreement triggering notice/cool-off obligations of 8(d).  À|  only applies in economic strikes NO? in ULP strikes (strikes called or prolonged b/c of one or more employer ULPs). À| áetermining t e ³cause´ of a strike: !| pLP strikers get ³bump´ and back-pay from t e date of an unconditional application to return. !| If employer commits pLP during economic strike. À| Courts will look to timing of strike. *| m  *a  . employee statements at rallies. employee statements on unemployment ins. !| pLP strikers can vote in strikes t at go beyond 1 yr.  .

. If t e employer and sympat y striker ave a no-strike clause.employee needs explicit language saying t at crossing picket line is mO? violative of t e no-strike clause. a secondary boycott violating 8(b)(4)). ? e Board says lean twd t e general no-strike clause covers it. Standard no-strike clause may cover sympat y strikes. !| S ift . By w/ olding work from employer by refusing to deliver to certain store w/ economic strike going on. 114 | L a b o r L a w .. À| Can argue t is eit er way. À| @ay be unprotected for several reasons: !| ? e picket itself may be illegal (e. # : Acting in solidarity by refusing to cross picket lines. !| ? e employee may ave waived any § 7 rig t by agreement.g. À| ? e waiver of a statutory rig t must be SPECIFIC. is t at in breac of a no-strike clause? Fairly well-est¶dt at even a single employee¶s decision to refuse to cross is ³concerted´ activity for ³mutual aid and protection´ w/i § 7. t e board presumes t at t e employee is unprotected.

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Problematic. ?    .  decisions say t at if it¶s raised at bargaining and t e parties agree to disagree t en no mutual intent to include t e sympat y strikes w/i t e clause. t/f no ³clear and unmistakable´ waiver of t e employee¶s statutory rig ts.  cc   c  À|    „   seems to run directly against t is. ?o furt er confuse.  . if t e p raises it at t e bargaining table and t ey talk about it and t e K doesn¶t say anyt ing about it. !| Looks like no-strike clause áOES include refusal to cross picket line is unprotected. . ‘ · 8(a)(3) discrimination w/ intent to encourage or discourage Union membership.

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but never passed. EE¶r first s ifted personnel to continue production at 15±30% production. @any stikers were eventually laid off because t ey lost t eir seniority. your first K. Combination of card rec. and interest recognition---comes into play dur. Replacement workers. *| m#„     (1963) . ALJ said no. 1$(/ À| Facts: EE¶r and t e pnion failed to reac an agreement on a new CBA and t e union struck (all 478 members participated). t e EE¶r basically found permanent replacements À| aolding: EE¶er¶s actions were so in erently destructive and discriminatory towards t e union and union activity t at it carried its own indicia of intent But no finding of specific intent was needed. ?o guarantee permanent positions t e EE¶r offered 20 yrs super-seniority to all replacements and strikebreakers. After t at t ey¶d strike. Board said yes. 115 | L a b o r L a w . pnion filed pLP. *| Free Choice Act tries to avoid t is problem of in erently destructive actions in first time bargaining situations mandated by interest arbitration. *| pndermines '-/ but does not overrule. ?ried overruling '-/ by statute. ? en EE¶r notified strikers t at t ey would be iring perm. À| Rationale: mo need to establis subjective intent to prove a violation because some conduct by its very nature implicate intent w ere t e natural foreseeable consequences of t e actions warrant t e inference. áevastating impact on t e strike and union finally conceded to a new CBA. and COA found t at absent a finding of specific intent. nor was it necessary to even reac t e question because t e injury to EE¶s rig t outweig ed t e company¶s business purpose.

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 116 | L a b o r L a w .. classified un-reinstated EE¶rs on t e basis of t eir protected activity. !| ? e court¶s must balance t e purported business interest against t e arm to EE¶s rig ts to organize and engage in pnion activity !| Board made 5 findings: *| pnlike @ackay t e super-seniority affected all strikers. on its face appears to serve legit business ends and dispels t e EE¶rs claim of legitimacy. and exceptional lure to attract replacements or strikebreakers. !| Conduct Speaks for itself²it is discriminatory and it does discourage union members ip and w atever t e claimed overriding justification may be. not just t ose w o ad been replaced. 255 mLRB 742 (1981): ? e Board found pLP w er t e company did not follow its own recall policy. created a impediment to t e union and union activity by creating a permanent reminder of t e dangers of union activity wit eac successive layoff. or laid off replacements based on t e expectancy of recall. and recalled non-strikers a ead of its union EE¶s. *| Extending super-seniority to CBp EE¶s as well as replacements were a combination t reat/promise t at could be expected to undermine t e strikers¶ mutual interest and place t e entire strike in jeapordy *| Super-seniority eig tened tensions. Etc« À| %%$.  *| Market-Based Checks?: ( was an extraordinary measure. *| Super-seniority works to t e detriment of strikers as compared to non-strikers *| Super-seniority made available to striking workers were offers of individual benefits and violated exclusive representation. future plans. w ic . e is doing somet ing more t an providing a market c eck on union demands. and mad collective bargaining impossible for t e rep.  cc   c  !| Sometimes evidence of subjective intent will impeac conduct. but can¶t be crazy. e is taking extraordinary measures to beat back t e strike. w ic are a pLP unless t e EE¶r can justify is actions as somet ing ot er t an as t ey appear on t eir face. rat er t an just permanent replacement À| motes: W ere t e EE¶r uses super-seniority. !| EE¶r must be eld to intent e foreseeable and inescapable consequences of is actions.it carries wit it unavoidable consequences w ic t e EE¶r not only foresaw but must ave intended. mot ing says ave to ire replacements under t e same terms and conditions of previous employment. not reflective of w at practices will be at t e strikes end and t/f distorts t e collective bargaining process.c!+$' . *| '-/ didn¶t apply because ere t e EE¶er¶s conduct was a far greater encroac ment by adding super-seniority to replacement. t e EE¶er¶s past business experience.  *| Recall Rights: ? e EE¶r does not ave to recall CBp strikers a ead of ot er laid-off EE´s and may extend recall rig ts to non-union.

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eld t at some conduct carries w/ it ³unavoidable consequences w ic t e employer not only foresaw but w ic e must ave intended´ and t us Sets up entire FRA@EWORK!!! bears its own indicia of intent. A bunc of t em demanded t eir accrued vacation pay from t e company under t e CBA (vested rig t?). !| ' "%02%4'038$%"/= (0"/(.includes discouraging participation in concerted activities suc as a legitimate strike.( 4(($(%($!0(0(0'' %. no proof of an antiunion motivation is needed and t e board can find a pLP even if t e employer introduces evidence t at t e conduct was motivated by business considerations. t e employer¶s future plans. *| If it can be rsbly concluded t at t e employer¶s discrim. circumstances of t e layoff. À| aolding: !| „   . ? e company said no. and w at t e employee was told regarding t e likeli ood of recall.´ an antiunion motivation must be proved to sustain t e c arge IF t e employer as come fwd w/ evidence of legitimate and substantial business justifications for t e conduct. employer as burden to s ow legitimate business purpose. means t at t e finding of a violation normally turns on w et er t e discrim.³ImaEREm?LY áES?RpC?IVE´ category.  cc   c  À| ‘8    . 117 | L a b o r L a w . conduct was in erently destructive of important employee rig ts. If in erently destructive. À| Seems to run against traditional burden falling on GC. !| aERE.  *| m#$ á ? (1967) . *| If t e adverse effect of t e discriminatory conduct on employee rig ts is ³comparatively slig t.0( $%(08  $(%3"6Œ*Œ>*3("/)$$ $'$(  !| COA: Alt oug discrim. S ortly after t e company announced it would grant vacation pay (in t e same amts in under t e K) to all employees w o reported for work on a certain date. conduct was motivated by an antiunion purpose. saying t at all K obligations ad been terminated by t e strike and t/f none of t e employees ad a rig t to t e pay.employers could extend recall rig ts to laid-off replacement workers if t ey ad a ³rsbl expectancy of recall´ based on   like t e employer¶s past business experience. À| ?wo-Prong ?est for 8(a)(3) Violations (see flowc art above): !| áiscriminatory !| áiscourages members ip . t e lengt of t e layoff. t ere was no affirmative s owing of an unlawful motivation to discourage union members ip or to interfere w/ t e exercise of protected rig ts. ? e company denied t at t ese payments were founded on t e agreement and said t ey were just a new policy."/2'/4$3( À| Facts: Workers went on economic strike. t e company didn¶t come forward w/ AmY evidence of legitimate motives for its discriminatory conduct.

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not ing c anged.´ À| Not clear how this will come out. *| ?‘.--‘ (1989) . *| 0 '( ! 44"/ '(2"/ ".c ' À| Facts: Junior replacement flig t attendants allowed to keep positions to t e detriment (under t e seniority bidding system in t e expired CBA) of senior striking flig t attendants. ( $. Just t at during t e strike t e strikers lost preferred rig ts as to location/sc edule (just would ave to wait for availability w en t ey come back from t e strike). *| mo discrimination and a business justification. Said  (.  cc   c  *| Permanent Subcontracting of Unit Work under $ á : À| $  á : Besides going to 8(a)(3) and arbitration. À|  K: áon¶t ave to bargain about t e terms and conditions of employment of replacements for strikers. Arguably. ‘. It is incentive for individual workers to try and save/improve t eir own positions by discontinuing support for t e strike effort.0 (0/ %$)(/(0  À| áissent: Like ( b/c undermines mutual concern among strikers.  interpreted ³in erently destructive´ narrowly in a case involving subcontracting during a lawful lockout. À| aere. Argue 8(a)(5) and 8(d) violations. À| Reasoning: !| Consistent as a . employer came fwd w/ business justification and seems to dismiss t e violation w/ t e balancing test (in erently destructive prong of analysis). and bidding system stayed t e same.0(+ (0 . (Can¶t sit down and bargain w/ t e p!) Can¶t offer anyt ing better to replacements anyt ing better t an you¶d offer to t e union (violates 8(a)(5)). In between '-/ and (. and (  %$ old t at in erently destructive conduct is OmLY w ere ³t e employer treated employees w/i a bargaining unit differently depending on t e degree of t eir union activity. À| aolding: An employer is not required to lay off junior crossovers in order to reinstate more senior full-term strikers at t e conclusion of a strike.duty to maintain terms of K). ave duty to bargain. áo we treat subcontracting like iring replacements (apply '-/)? mo effect of long-term division of t e workforce like PRs. p could ave made argument t at on expiration of t e K. employer cannot alter t eir policy w/o bargaining (it¶s a mandatory subject of bargaining --.  .. À| . : Everyone got to keep t eir seniority.

118 | L a b o r L a w . Balancing test creeps into initial classification in terms of w en in erently destructive. O@G! . just tactics (t oug t at¶s not w ere t e case goes). *| ?aIS FRA@EWORK IS REAL.Lync . ? is initial classification is problematic b/c tells you everyt ing but you don¶t get any clarity from t e opinions as to w en to treat it as in erently destructive (well. W ic ever way you categorize. makes all t e difference in t e world.  also arguably applies b/c not discriminating. def as to be discriminatory) or comparatively slig t.

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Permanent replacements and t e strikers t ey replace ave t e rig t to vote in Board elections. took away t eir turkey. at t e time of t e refusal to bargain. OR !| ? e employer ad a 4.productivity went down. Board¶s approac was t at employer could rebut by s owing t at. !| ? „  Mackay    !   *| An economic strike does not suspend an employer¶s duty to bargain. productivity was sufficient business justification. eit er: !| ? e p did not  enjoy majority support. À| aere. Business justification .  cc   c  À| W at¶s t e basis for t e initial categorization? *| C ristmas Bonus aypo: ? e employer ad a bunc of plants and one of t em struck and productivity went down so didn¶t get Xmas bonus. Can say discrim. an incumbent p as rebuttable presumption of continuing majority status. b/c on strike. *| ISSUE: W at is t e effect of iring replacements on t e incumbent p¶s majority status and t e employer¶s duty to bargain during and after an economic strike? After expiration of t e certification year.

CBA expired and employer made final offer on anew agreement w ic was rejected by t e p. (4) iring of striker replacements . *| m#    +. of t e p¶s majority support ( ((0$). 5 . !| Board said (1) crossover didn¶t support an inference of repudiation. Finally. À| Standard: Was t ere a good-faith doubt. Five employees immediately crossed t e picket line. 29 replacement workers were ired. and (3) statements made by six employees were ambiguous at best. founded on a sufficient objective basis. 19 strikers. (2) Resignation of two employees didn¶t indicate opposition. (1990) À| Facts: Board certified p as CB agent for production and maintenance employees. of t e p¶s majority support? !| Presumption of continued representation: mew workers w o were supporting representation is t e same percentage of support at t e time t at t e election was eld. Employer t en w/drew recognition from t e p and refused to bargain stating t at no longer ad majority of employee support. but reduced t e size of t e bargaining unit.use      . founded on a sufficient objective basis. Employer t en locked out t e 27 bargaining unit employees and t e p commenced an economic strike.need add¶l evidence of a lack of union support by replacements to be a significant factor in 119 | L a b o r L a w .

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to 5  ('0   . it seems impossible to conclude t at t e employer did not ave a 4"+.%3(0 doubt re t e p¶s majority status.  cc   c  good fait doubt. *| Alternate approac = s ow actual loss of majority status before w/drawing (see Fm 8 of opinion). À| Reasoning (plurality): ? e presumption t at replacements oppose t e incumbent pnion would. !| ? e Board¶s approac is also consistent w/ mLRA policy of industrial peace. 3 %'(3'($+(0 ""/ "( "/ %(/   $  '' ($' !0 (0  0$)(%(0'0'!0(0(""/ ((0!-)A4$(0"$  !| ‘   .) Defensive YES (!$) ? Offensive YES ? (needs to come from t e bargaining relations ip--- it¶s troublesome) ´| 33$21$$(@3/ "((033$2"/"'- ($%"((00$%. Acc. aard to decertify and ard to unilaterally w/draw w/o an election. !| ?ensions w/ t e statute: Employee free c oice and protecting bargaining relations ip.. À| áissent (Scalia): ? e interests of t e replacements is invariably opposed to t e interests of t e strikers. in effect. An anti-union presumption could discourage GF bargaining and c ill employees¶ exercise of statutory rig t to strike b/c an employer could eliminate t e p just be iring enoug replacements.?/f evidence insufficient to rebut presumption of continuing majority status. À| Concurrence: ? is case presses t e limits of deference. @ay be an economic concern and not about pnion support for refusal to cross t e picket line. cannot poll employees. !| Replacement workers are capable of looking past t e strike in considering w et er or not t ey desire representation to t e union (in response to argument t at t ere in in erent conflict in p repping bot strikers and replacements). aold a decertification election. override t e presumption of continuing majority status. but t en not allow t e only effective means of determining t ose sentiments. Re n as doubts t at t e Board may insist t at a GF doubt be determined on t e basis of sentiments of individual employees. À| aolding: ? e presumption is rational. À| áissent (Blackmun): ? e Board departs from prior cases w/o explanation. Lockouts ?emporary Repl(   Permanent Repl 0"%.

"'- (J'" *| Facts:Employer operates s ipyards² ig ly seasonal business concentrated in t e winter mont s. Employer feared t at a 120 | L a b o r L a w . m#(1965) .

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? e lockout may dissuade employees from ad ering to p position. after an impasse as been reac ed. and not supported by t e Act. mo  ( sc ism among workers. but t e rig t to bargain collectively does not include any ³rig t´ to insist on one¶s position free from economic disadvantage. [!$ eld no lockouts b/c gives employer too muc power. ? is is more like $  . t e employer laid off most of its workers. meg¶d a new K after t e lockout and t e employees were recalled. ? e majority rejects t e Board¶s reasoning b/c t ey don¶t t ink t e lockout is in erently destructive. ? e Board already balanced t e necessary interests. À| ?rial Examiner found t at t e employer¶s primary purpose in locking out its employees was to avert a particularly armful economic consequence. just puts pressure on t em.  cc   c  strike would come in t e summer during worst time of s ipping season. À| ? ere is not ing in t e statute to imply t at t e rig t to strike ³carries w/ it´ t e rig ts exclusively to determine t e timing and duration of all work stoppages. À| áoesn¶t destroy p¶s ability to represent strikers.] *| Concurrence: Argues t at t e Court unnecessarily reac ed t e  of t e validity of bargaining lockouts.$( (a tactic). À| ? e Board. (³áefensive´ lockout principle. *| Reasoning: À| mo evidence/finding t at t e employer was ostile to employees¶ collective bargaining or t at t e lockout was designed to discipline t em. À| Board found t at t e layoffs were for economic coercion and t is purpose is a pLP under §§ 8(a)(1) (coercion) and 8(a)(3) (discrimination). !| Lockouts are permissible to safeguard against loss w ere t ere is rsbl ground for believing t at a strike was t reatened or imminent. mone ere. does not ave t e general aut ority to assess t e relative economic power of t e parties in t e bargaining process and to deny weapons to one party or t e ot er b/c of its assessment of t e party¶s bargaining power. p assured employer t at t ey wouldn¶t strike but t ere ad been wildcat strikes before.) *| aolding: /lockouts and business s ut-down do mO? violate §§ 8(a)(1) and 8(a)(3) w en used solely as a means to bring economic pressure to bear in support of t e employer¶s bargaining position. despite !$. But t is is a truncated definition of t e rig t to strike. Can¶t say t e employer¶s intention was to destroy/frustrate t e bargaining process. áuring t e summer. !| m  *#       . ? is conduct does speak for itself (is in erently destructive) under  ( b/c it carries w/ it unavoidable consequences w ic t e employer not only foresaw but must ave intended.

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? e nonstruck companies locked out t eir employees in order to maintain a common front among all members of t e association. Board eld t is was response to a ³w ipsaw´ strike comes w/i expanded category of ³defensive´ lockouts. up eld as w/i Board¶s policymaking discretion.Ct. *|    # (1957):áefensive lockout came from multiemployer bargaining context. S. 121 | L a b o r L a w .

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? e closed business sued t e open business in t e multi-employer unit. It is t e Board¶s responsibility to balance t ese interests.  cc   c  À| @ultiemployer bargaining puts small businesses on an equal playing field w/ large pnions. S. À| In any event. !| Pre-Impasse Lockouts: "$. 1969). ($. À| Permanent Subcontracting? !| ³Mutual Aid´ Pacts: Employers call for nonstruck employers to pay to struck employers a s are of t e increased revenues accruing to t e former b/c of a strike. programs are not t e subject of mandatory bargaining and so a p¶s insistence of eliminating t e ins.vacation benefits for leaving strike) *| Permanent Replacements: @aybe OK for legitimate business reason if imminent strike deadline ($()" ) or employees engaging in substantial violence (0$1 $2""). ? e Board up eld t e disputed lockout on t e ground t at t e    of t e bargaining unit justified t e employer¶s concern about a strike timed to occur during its busy season. and (3) w et er t e employer ad agreed to continue in effect t e union-security clause from t e old K.superseniority of 20 yrs for replacements) !| Factors (from c'" 6C): (1) duration of t e temporary employment and w et er a definite date of termination ad been communicated to t e union and employees.C. didn¶t see ow t e continued operations of Food Jet and t eir use of temporary replacements was any more destructive/ ostile twd employee rig ts t an t e lockout itself. emp asizing t at t e pnion was ³strong´ and ad been recognized for a substantial period.$c'". Cir. 122 | L a b o r L a w .. ? us.  (mLRB 1968) eld t at t e        $%($$. we ave conflicting legitimate interests ere.Ct. or provide for payments to t e struck firm out of ³insurance funds´ contributed by t e participating employers. (2) w et er t e option of returning to work was available to t e employees upon t eir acceptance of t e employer¶s terms. violated 8(b)(3).!0(0"'- (! $"!3 ""/(2(% It does not per se render a lockout illegal. Keeping t e business open preserved t e multi-employer group and t e common front essential to multi-employer bargaining. w at is t e employer¶s legitimate business justification? À| If ³comparatively slig t´ s t ere proof of antiunion motivation? (($ . !| Lockout Coupled w/ airing Replacement Workers *| ?emporary Replacements:Is !$ limited to multi-employer bargaining???? À| áoes an employer¶s use of temporary replacements after locking out unit employees constitute action w/ an ³inherently destructive´ or ³comparatively slight´ impact on § 7 rig ts? (Erie Resistor . Employer strike ins. $. áarling was affirmed in c$2  c (á. *| m#  (1965): ? e nonstruck members¶ use of temporary replacements in tandem w/ t e defensive multi-employer lockout did not violate §§ 8(a)(1) & (3).

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(5).  cc   c  !| Partial Lockouts? Lockout non-probationary employees and keep probationary employees on t e job. *|  . @ost of t e time partial lockouts aren¶t resolved t is easily. Lync : ? is is flat out discrimination---locks out only p members. Can you do t is under 8(a)(3).

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Cir. ? e employer subcontracted out work and all bargaining units eliminated. ? e pfiled under 8(a)(1). 1988) *| Facts: p aut orized a strike. p entered into informal agreement for no more coercive acts.C.: á.C.   . (5). pursuant to t e CBA. (3). ? en.´ t e employer must ³establis t at e was motivated by legitimate objectives. to protest t e employer¶s failure to comply w/ certain grievance procedures. Strikes end.m# (á. eld t at t e burden was on t e employer to present evidence s owing t at t e lockout was motivated by legitimate objectives. Cir.´ Subcontracting Struck Work !| # ‘á  +. ?eamsters got all violent against replacement workers and company property and so t e employer filed a pLP claim. *| aolding: If you want to subcontract during strike. Interpreted Great áane as olding t at if an employer as ³engaged in discriminatory conduct w ic could ave adversely affected employee rig ts to some extent. t e G@ told t e former strikers t ere was no work for t em.

1997): An employer may implement a permanent subcontract during a lockout. (If just iring replacements. context of t e past years of dispute. . ? en still may ave an § 8(a)(3) violation.  (á. of striking. À| ? e ALJ was amply supported in finding t at t ere was no business necessity: Sub-K after 3 mo. w/ t e p. or comparatively slig t? áoes t e employer ave business justification? If yes. À| Courts try to deal w/ t ese cases w/i t e framework as: is t e action of t e employer in erently destructive to § 7 rig ts. don¶t ave to bargain re terms and conditions of t e replacement workers. t en ave to s ow antiunion motive. Cir. ad successfully operated dur.C. just as it may do outside of t e lockout context.´Balancing test . mot automatically ³in erently destructive. t at period.Court interprets case narrowly to say ³an employer may not be obliged to bargain w/ a union about permanent subcontracting during a strike w en t at subcontracting is necessary to t e business purpose of keeping t e plant continuously in operation and time of decision is of t e essence.) À| W y t e distinction? *| Reasoning: À| ! ( .´ Permanent subcontracting but t e business justification was sufficient to justify.impact comparatively slig t and t e employer in t e particular context of t is case ad a legitimate business justification to subcontract out t e work given t e istory/context of t e dispute. employees didn¶t demand sub-K status. *| aow is t is different from a lockout? !| . 123 | L a b o r L a w . after strike violence pLP settled.

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Sense of solidarity b/t workers so picket is a signal to a fellow p member to not cross t e line.  cc   c  Regulation of Collective Action by Labor Organizations À| Constitutional Limitations on Government Regulation !| Fundamental Q: W y isn¶t picketing speec ? áoes it depend on w at t e signs say? áo we make distinctions b/t speec based on content? W y does labor law do t is?!! Only way to justify is t at b/c picketing is mO? just speec . *| Underlying Assumption: pnions are ig ly organized interest groups. ? e discipline twd workers and consumers. Can ave a  .

*| Keep asking: Is t is really sensible under t e First Amendment? !| ?  +# 3')0 .         .

+. intimidate or induce any employer to interfere w/ any of is employees in t e enjoyment of t eir legal rig ts .´ árivers refused to deliver/ aul goods to/from plant. WI policy is a blanket policy against all picketing (invalid?). À| Speec may be part of a course of conduct t at violates a valid law. is     !      of ideas and cannot be immune from all state regulation. ³? e men on t is job are not 100% affiliated w/ t e AFL. w et er its criminal or civil law. Reads 4$/ to old t at t is form of expression 124 | L a b o r L a w . some employees picketed t e entrance of t e place of business wit signs reading. A picket t at was in a single and integrated course of conduct was a conspiracy in restraint of trade violating state antitrust law. W en it soug t unsuccessfully to induce some of t e employees to join. could constitutionally enjoin peaceful picketing aimed at preventing 33'( ($3(0("'/. $  . and w et er announced by its legislature or its courts. .: ? e picketing was for an ³unlawful purpose´ since a state statute made it a pLP for an employee(s) to ³coerce. *| áissent: aOGWASa! ? ere is not ing but speec ere²advocacy of one side of a dispute t at warrants First Amendment protection.Ct. À| WI S. in enforcing some public policy.´ *| aolding: A State. or to engage in any practice w/ regard to is employees w ic would constitute an pLP if undertaken by im on is own initiative. À| Injunction upheld. ? e policy enforced ere is a valid one. Involves patrol of a particular locality and     .(1957) *| Facts: pnion wanted all gravel pit employees to join t e union. WI as rational basis for t e inference it drew concerning t e purpose of t e picketing (coercing t e employer to coerce is employees). causing substantial damage to t e business. irrespective of t e nature of t e ideas being disseminated. w en suc picketing is counter to a valid state policy in a domain open to state regulation. ? e employer soug t an injunction to restrain t e picketing since it was to induce t e employer to force its employees to become union members. . Injunctions s ould be up eld even w en arising in t e course of a labor controversy. *| Reasoning: À| Picketing. even if peaceful.

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rat er t an a reasoned response to an idea. But w y not just regulate on access/egress? *| A form of   applied by    +    . response to a signal. Why? *| Calls for an auto. *| ³Speec plus´ b/c it involves martial aspects (interfering w/ access and egress).  cc   c  can be regulated/pro ibited only to t e extent t at it forms an $(" part of a course of conduct w ic t e State can regulate or pro ibit. Retail Stores case. !| Labor picketing = economic pressure subject to rsbl state regulation rather than as a form of communication generally exempt from regulation by virtue of the First Amendment. ?reated differently from political picketing.

*| Contrast NAACP boycott of white businesses. sanctions. more like eco. Obligates t e Board to give priority to c arges alleging violations of §§ 8(b)(4). Secondary Pressures Section 8(b)(4)(A).´ Section · 303." . . Pro ibits a union from pressuring secondary employers to ³cease doing business´ w/ t e primary employer.Ct. Permits employers and ot ers injured by § 8(b)(4) violations to sue 125 | L a b o r L a w . constitutionally protected despite t reats by an mAACP official. social pressures.. to strike for t e purpose of securing an agreement pro ibited by section (e). eco. weapon. It s all be an unfair labor practice for a labor organization or its agents . ? e S. interests. *| Can be regulated as part of an integrated sc eme to affirmatively protect labor groups in t eir rig t to organize and pursue economic objectives by concerted action. Supported by system of power (common eco. less consideration under t e First Amendment. (E. Section 8(b)(4)(B). áeclares unlawful certain contractual provisions t oug t to furt er secondary objectives.g. . Section 8(e). and 8(b)(7). Consumer Boycotts *| . ³[C]onduct designed not to communicate but to coerce merits . *| Political-economic distinction b/t t e two cases are manipulable.#‘Case (1982): A pnion boycott (protesting Soviet invasion of Afg anistan)disrupted Allied¶s s ipments and so Allied filed secondary boycott c arges under § 8(b)(4) and broug t a damages action under § 303. Kind of like trading away constitutional rig ts? !| Producer vs.´ ? e labor laws reflect a careful balancing of interests in its policies and t ere are ways to express opposition to Russia t at does not infringe on t e rig ts of ot ers. loyalties. eld t at the ILA boycott was illegal and dismissed t e 1st Amendment contention. Consumer-producer distinction makes t e two cases compatible. won¶t Section 10(l). and requires BmLRB Regional áirectors to seek interim injunctive relief in t e district courts if t ey ave ³rsbl cause to believe t at suc c arge is true. . @akes it a less rational appeal to persuasion. and bureaucratic force). aeld to be economic strike and speec was protected. . 8(e).

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Independent companies did service on t ese Ks and t e customer sent Royal t e unpaid repair bill and Royal paid t e independent company directly. Provision also protects certain nonpicketing publicity.  cc   c  directly in fed¶l court to recover damages. *| Improper Pressures = À| Pressures directed at employees of ³any person´ to induce a work stoppage (§ 8(b)(4)(i)). !| 4‘5á  : Always must define t e ³primary´ employer. *|  ?   ./   á : ?See ? orman book on reserve for a good explanation of secondary/primary picketing. or restraint of suc person (§ 8(b)(4)(ii)). 1955) À| Facts: Royal service employees were on strike.´ !| Provision preserves ot erwise lawful primary strikes or primary picketing. Royal ad warranties t at t ey would service t e typewriters.PROBLE@ = aow do we determine w at¶s primary? À| Clause (C): forcing an employer to recognize or bargain w/ a union if anot er union as been certified. À| Clause (B): Forcing any person ³to cease andling products of any ot er employer´ or ³to cease doing business w/ any ot er person. so during t e strike t ey ad to contract out t is work. !| Broad: W ere an employer is attempting to avoid t e economic impact of a strike by securing t e services of ot ers to do is work. a U must have used improper means in support of an improper objective. *| Improper Objects = À| Clause (A): forcing an employer to enter into a § 8(e) agreement or to join a union. coercion. t e striking union obviously as a      in preventing t ose services from being rendered. À| Pressures directed at ³any person´ (presumably representatives of employers) t at amount to t reats. (2d Cir. À| aolding: ? e independent repair companies were so allied wit Royal t at t e pnion¶s picketing of t eir premises was not pro ibited by § 8(b)(4)(B). pnion picketed four independent typewriter repair companies doing t is work. *| Provision states t at t e section does not make it unlawful to onor a picket line maintained at t e premises of anot er employer. !| marrow: An employer is not w/i t e protection of § 8(b)(4)(B) w en e knowingly does work w ic would ot erwise be done by t e striking employees of t e primary employer and w ere t is work is paid for by 126 | L a b o r L a w . t e statutory pro ibition of secondary-situs picketing does not apply. !| ? . !| ?o establish a violation of · 8(b)(4). If t e picketing takes place at t e premises of anot er firm t at is deemed to be an ³ally´ of t e struck employer.

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can t e pnion go picket t e newspaper? Ot er businesses of t at owner---cases ask is it a  "        ? S ifting of workers back and fort . owns s ip from ot er company. from a foreign location on a regular basis. Emp asizes taking pay from Royal. ? ese allies would inevitably tend to break t e strike. *|  (4 %$$'$%/'$/ À| Concurrence: ? e independents so far associated t emselves w Royal in t e controversy w/ its employees as to forfeit t eir privilege as neutrals. ³? e economic effect upon Ebasco¶s employees was precisely t at w ic would flow from Ebasco¶s iring strikerbreakers to work on its own premises. and (c) integrated operations. *|   áá (1950) .  : Second exception to t e bank on secondary-situs picketing---t e employees of t e primary employer are performing work at t e premises of a secondary employer.S. (b) common control. t e company t at boug t t e typewriters and t e company coming in to do t e worker¶s jobs. *| Corporate Parents and Subsidiaries: If company as ?V station and newspaper and ?V people go on strike.( '-!-*A (4'(0/4'1 *| Common Ownership/´Integrated Enterprise´ Ally: Law is clear t at t e pnion can post picket lines around a primary employer¶s facilities urging ot er employees not in bargaining unit to refuse to cross picket lines. !| Independents ad   of t e strike and ³farm-out´ b/c of t e existence of t e strike. b/c it is your employer t at owns bot . ? e s ip auls goods to t e p.´ !| By doing t e work of t e primary employer t ey        t emselves at t e time t at t ey  t e primary employer. ? is is not directed to ³any person´ ot er t an t e primary employer under t e proviso to § 8(b)(4). c À| Facts: Samsoc = R-1. À| Reasoning: !| „ eld t at subcontracted work was ally b/c not ³doing business´ w/ Ebasco (was ally) w/i t e meaning of 8b4a and t e pnion t/f adn¶t committed a pLP. ? e company t at ad done t e s ipping in t e past ad been PaOPaO 127 | L a b o r L a w .  cc   c  t e primary employer pursuant to an arrangement devised and originated by im to enable im to meet is contractual obligations. À| Must have (a) common ownership. ow muc day-to-day autonomy? !| 4   5. and t e picketing itself. *| Common situs problem in /": Situs of a true R-2. receipt of c ecks from Royal. *| 3 (0/) "" $ $ "'($+  (0/ "" $ (0 (0% (/ "'($ Œ$( %$. same labor policy.

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and not @oore.  cc   c  represented by p-1. *| m#á    . Keeps work from getting done on t e s ip. as p workers. *| Standard: Primary employees must be present and doing related work at t e situs. if t ey won¶t let you get near it. áismissed rep case b/c foreign s ip. w ic puts pressure on @oore áry áock to stop doing business w/ Samsoc. !| (d) Careful t at picketing was directed to Samsoc. À| aolding: Picketing of t e premises of a secondary employer is primary b/c it meets t e following conditions: (a) t e picketing is strictly limited to times w en t e situs of dispute is located on t e secondary employer¶s premises. ? e union picketed at t e s ipyard¶s entrance after being denied permission to picket immediately adj acent to t e dock w ere t e P op o (s ip) was located. refuses to work on Samsoc¶s s ip. p wants to bargain re t e Greek workers and represent t ese workers and get t em p wages. À| Class motes: !| Classic common situs situation. Samsoc gets Greek crew at muc less t an p wages. @oore áá can tell t em to come on t e property and picket next to t e SaIP. If t ere were a problem w/ deliveries t at didn¶t want to cross t e picket line. !| (c) Were as close to t e s ip as t ey could get under t e circumstances. Signs read P op o was ot. (b) at t e time of t e picketing t e primary employer is engaged in its normal business at t e situs. but S ip as option of letting you get near it or not. Prepping crew is normal business of a s ip. !| (b) ? e crew was ready for sea. Clear t at t ere¶s no dispute w/ t e áry áock. but t en deliveries to t e áá are fine. t en ot er consequences. on board to serve purposes of Samsoc. and (d) t e picketing discloses clearly t at t e dispute is w/ t e primary employer. @oore = R-2. (c) t e picketing is limited to places rsbly close to t e location of t e situs. !| Concept is t at you can get next to t e work t at is t e work of t e primary and picket t at. À| Reasoning: !| (a) S ip was tied up on t e dock. mo attempt to interfere w/ ot er work at t e @oore yard. ?ells t em not to deal w/ t e crew/s ip.

c111' "% /  '-( (0 !0"4 "%$. G&P sued. general contractor.   ?   (1951) . Said t at union men could not work on t e job w/ nonunion men. G&P is non-pnion (only nonunion employees on t e project).(+(0$((/ $ '$(" 3 (0 4 "%$.(@ 128 | L a b o r L a w . subcontracted G&P (R-1) to do electrical work. á&L pnion wants t em off t e job so t ey protest to á&L for iring non-pnion sub. !| 0/$)((0 1@3(0/!+(0$((04 "%$. áuring strike/picket G&P were only men to work. ( ! "% 4 .c À| Facts: á&L = R-2. á&L notified G&P to leave so t ey could keep working on t e project.

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aave a subcontract in place! À| Concerns in t e background re inflated construction costs. ? e subcontract presents a different situation: ? e only way t at t e pnion could obtain t eir purpose (not work w/ nonunion men) was to force G&P off t e job. (mot allies. for t e purpose of forcing á&L to terminate its subcontract. ? e reason for doing so was to insulate GE employees from t e frequent labor disputes in w ic t e contractors were involved. À| Reasoning: !| ? e labor dispute is between t e pnion and G&P. contractors.standards to old CON?RAC?ORS ONL ! t at t e pnion¶s object in picketing at t e separated gate was to enmes t ese employees of t e neutral employers in its labor dispute in violation of § 8(b)(4)(A) (object of forcing t e indep. À| aolding:/ '. @ust. is a pLP. and t at t e contractor ad some supervision over t e sub¶s work. forcing á&L to terminate its K. (1('%$. !| ? e Board used / '. ? e pmIOm called a strike and picketed at all t e gates including t e one only for indep. *| $  „ (1961) . ? is makes t e rig t to strike dependent on fortuitous business arrangements t at ave no significance to t e evils of t e secondary boycott. contractors to cease doing business w/ t e Company).4 $!1 À| aolding: ? e union¶s strike. À| Reasoning: 129 | L a b o r L a w . t en.$. !| ? e fact t at t e contractor ad subcontractor were engaged on t e same construction project.  cc   c  !| ( $ ((0!/(%4''$( '($(+(0"44" !(0 4!0$( $.'-(%!$%4//"/ À| Facts: Independent contractors¶ employees were only allowed to use one gate.can apply to picketed premises owned by t e primary employer if t e pLP picketing occurs at an area t at is            of t e struck employer. À| Existence of t e subcontract makes it a dispute b/t t e p and t e subcontractor and not b/t t e GC and t e pnion. t e protest is t e same: union men did not want to be compelled to work alongside nonunion men on t e same job. ave included among its objects.!- 0/(0'$%/(0$ 4'/ )4$. !| G&P employees were mO? á&L employees.) aad an establis ed business relations ip of ³doing business´ w/ eac ot er. and so á&L ad not control over t eir movement/replacement. did mO? eliminate t e status of eac as an independent contractor or make t e employees of one t e employees of t e ot er. À| áissent: ? e presence of a sub does not alter t e realities of t e situation.

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*| $„ on Remand: ? e installation of s owers and miscellaneous repairs t at ad once been done by GE¶s employees were ³necessarily related to GE¶s normal operations´ and t e picketing was t us ³primary.for R-2 picketing w/ R-1 dispute (common situs besides construction sector). and looking at property w ere some ? ird Party owns as / issue. À| Class motes: Importing ally doctrine to common situs doctrine. Bp? court doesn¶t treat under @oore áry áock.  ot erwise applies. !| áual objectives from $2 % was to balance interest to bring pressure to bear on offending employers in primary labor disputes and s ield unoffending employers and ot ers from pressures in labor disputes t ey are not involved in. only a pLP f t e indep.  (9t Cir. À| . must determine t e type of work t at is being performed by t ose w o use t e separate gate. pndermines distinction b/t looking at property w en dealing w/ O as  issue. Applied /'. t e location of t e picketing at t e primary employer¶s locality is not necessarily conclusive of its legality. applies á  ?  at the construction site. Instead said like deliveries so treat under  . workers were performing tasks unconnected to t e normal operations of t e struck employer. brings in two subs repped by Building & ?rades p. /'. Board eld t e p            even t oug its dispute was w/ t e O. Can create a separate gate. !| Even t oug t e primary employer owned t e premises. mo.Elec. by common-situs doctrine) on t e operations of neutral employers utilizing t e market. Looks like common situs in /'-. Create separate gate is OK. Gave direct access. ? e cases t at create problems are: À|    (1964): ? e pickets against R-1 were on R-2¶s property. p@W doesn¶t like t at t ey¶re not represented by p@W. but don¶t ave deliveries come to t at gate t at would be necessary for ordinary operations b/c undermine w at p can typically do t at primary strike to disrupt ordinary operations.´ *| Relationship of GE/Moore Dry Dock/Denver ?rades:RECOGmIZE t e tensions in t e classifications. 1967): GC controls w ole site. 130 | L a b o r L a w . ? is respects t e balancing of objectives in . Even mixed use of t e gate would not bar picketing rig ts. 1957): Crystal O of property Amá involved in dispute. work intimate to ordinary operations? $2 % still good law for construction sector. mow t e  is if @&a in control of w ole site.w ere R-1 actually owns t e property. !| On remand. À|  a" (5t Cir. is t at like  ? ? e work is definitely interrelated and can picket all t e gates. Standard: Sub-Ks can¶t be doing work intimately related to ordinary operations.  cc   c  !| ? e pnion must minimize t e effect of its picketing (as req.

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131 | L a b o r L a w . Like an exception b/c if site is controlled by R-1 (@&W) you will wind up w/ an interrelated test (GE) if out of t e construction sector.  cc   c  and t e p can only picket t e gate w ere t e subs are coming in.

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It s all be a pLP for a labor org.  cc   c  Appeals to Customers of Secondary Employers § 8(b)(4) . or its agents (i) to .

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*| m  *Servette-DeBartolo  4.´ À|    (1964): p dispute w/ a distributor. in t e products of any producer . or transport any goods. for t e purpose of trut fully advising t e public. . . R-2 = O and ot er tenants. . Servette argued 8(b)(4)(i) inducement of work stoppage and 8(b)(4)(ii) t reat/coercive andbilling warning. w ere in eit er case an object t ereof is . w ere not ot erwise unlawful. Court said t e p was not seeking to induce a work stoppage. including consumers and members of a labor org. asking people not to patronize any of t e stores until mall owner met demands.´ t at a product is          w/ w om t e p as a primary labor dispute. as been certified as t e rep of suc employees under section 9.   ·=. t at not ing continued in t is clause (B) s all be construed to make unlawful. 5. materials. ot er t an picketing. not ing s ould be ³construed to pro ibit publicity. unless suc labor org. . R-1 = dep¶t storeowner. deliver. or commodities or to perform any services. but were asking managers to make a decision w/i t eir control.<.9<  À| ?he Publicity Proviso: For t e purposes of 4. but distributed by anot er employer. articles. or (ii) to   +  +   any person engaged in commerce or in an industry affecting commerce. ? e local building trades council andbilled t e s opping center. p asked supermarket managers to discontinue stocking merc andise supplied by Servette or t ey would andbill t e market asking customers not to purc ase items from Servette. at t e establis ment of t e employer engaged in suc distribution. ? e andbilling wasn¶t unlawful b/c of t e ³publicity´ proviso. or ot erwise andle or work on any goods. ³as long as suc publicity does not ave an effect of inducing any individual employed by any person ot er t an t e primary employer in t e course of is employment to refuse to pick up. . . . manufacture. (B) forcing/requiring any person to cease using . !| NLRB & COA: aandbilling protected by PP b/c GC was a ³producer´ of t e construction of t e store and mall owner & tenants 132 | L a b o r L a w . any primary strike or primary picketing. transport. or forcing/requiring any ot er employer to recognize/bargain w/ a labor org. . .        4   5       (Congress¶s concern was t at t e p¶s ave freedom to appeal to public for support). process. or person. Provided. a strike or a refusal in t e course of is employment to use. À|   (1983): áep¶t storeowner ired GC and tenants didn¶t like t at t e GC paid employees substandard wages. or not to perform any services. any    employed by any person engaged in commerce or in an industry affecting commerce to engage in.

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áon¶t address coercion or free speec issues. À| motes: Congress in t e proviso seems to ave explicitly excepted picketing from t e proviso as in erently coercive.  cc   c  were in a ³symbiotic´ relations ip b/c t ey would benefit from GC¶s ³product. or restrain´) t ere must be affirmative proof t at substantial economic impact on Safeway ad occurred or was likely to occur. ? e picketers were given detailed instructions not to interfere wit t e business of t e Safeway stores in any way. But t is presents a problem for t e Court because it was peaceful. If we really read t e statute as pro ibiting t is t en it mig t be unconstitutional violation of 1st Am. also. t erefore. !| ? -  (1964) *| Facts: pnion struck packagers and distributors of WA apples. t e Court will not ascribe to Congress a purpose to outlaw peaceful picketing absent t e clearest indication of intent in t e legislative istory. *| aolding: 8(b)(4)(ii) does not bar secondary consumer picketing of t e primary product because Congress s owed no intent to pro ibit suc peaceful picketing. !| All t e legislative istory s ow is an intent to prevent secondary picketing wit a purpose of persuading t e secondary EE¶r¶s customers to cease trading wit im. olding t at in order to violate 8 (b)(ii) (³t reaten. it creates a separate dispute wit t e secondary EE¶r. but t e COA set aside t e order and remanded. Board eld t at picketing in front of a secondary establis ment was pro ibited. it was intended to pro ibit secondary boycotts aimed at dissuading patronage of t e secondary EE¶r. ? e Picketing did not ³t reaten.rat er. !| Illustrates t e difference b/w suc conduct and peaceful secondary picketing directed only at t e struck product !| Consumer picketing causes a decrease in demand due to diminis ed purc ases of t e struck product only !| Secondary Boycott¶s of a secondary EE¶r does not just follow t e struck product. or restrain´ Safeway w ere it was limited to t e WA apples product and was directed not to interfere wit Safeway¶s ot er business À| Rationale: Congress as consistently refused to pro ibit peaceful picketing except w ere it is used as a means to ac ieve specific ends w ic experience as s own are undesirable. coerce. diverts t e inquiry away from t e relations ip b/t t e primary and secondary employers and twd t e two secondary employers. pnion is not trying to do any of t e t ings t at t e Court ad looked to to justify regulating picketing. Said t at t e ³symbiotic´ relations ip analysis strips t e distribution requirement of its limiting effect.Ct. !| áisagree wit t e COA t at t e test of 8(b)(4)(ii) is w et er t e secondary EE¶r suffered or was likely to suffer economic loss. coerce.´ !| S. ? ey seem to really be saying t at w at congress was really worried about was t e economic impact on t e secondary 133 | L a b o r L a w . too generous a std. and instituted a boycott of t e primary EE¶r¶s product ²t e apples² and picketed t e apples at Safeway stores in and around Seattle.: ? e andbills went beyond t e reac of t e proviso b/c t ey urged a boycott of t e products sold by t e dep¶t store and co- tenants.

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?  - : Over 30% × don¶t picket.0$%4""$.(4" t e apples were but one of many products carried by Safeway !| Boycotting Safeco was a de facto boycott of t e title companies.  cc   c  *|   ? . À| mone of t e non-speec elements t at incite action and w ic are in erently more persuasive t an simply passing out andbills t at depend on t e persuasive force of t e idea 134 | L a b o r L a w . !| As applied to picketing t at predictably encourages consumers to boycott a secondary business.For t e title Co. denied enforcement because of doubts about w et er § 8(b)(4) could constitutionally ban peaceful andbilling not involving non-speec elements of picketing and strikes À| aolding:aandbilling is not coercive. À| Reasoning: !| Serious 1st Amendment concerns because t e andbills were trut ful. !| In & ( $% -. it is ard to see w y andbilling would be afforded less protection. !| mo violation of 1st Amendment w ere boycotting of secondary employer spreads labor discord by coercing t e party to join t e fray. making a pLP out of any communication to t e public ot er t an t ose t e proviso specifically deals wit and pro ibiting peaceful andbilling w ere actual picketing of a secondary employer carrying a non-union product would be permissible. after bargaining to impasse and picketed 5 local title Co. ? is is classic secondary economic pressure (COERCION).$(''2 À| Facts: On remand t e Board eld t e andbilling proscribed by § 8(b)(4)(B)(ii) as coercion. aere asking customers not to buy or cancel Safeco insurance b/c customers could reasonably expect t at t ey were being asked not to do business wit t e secondary employerb/c of t e s are of business t e primary ad.¶s Safeco represented 90% of their business. ? e 11t Cir. § 8(b)(4)(ii)(B) imposes no impermissible restrictions upon constitutionally protected speec À| Reasoning:Distinguished from ?  -  on the basis of proportionate share of business. À| aolding: !| Product picketing t at     %              simply does not square wit t e language or purpose of § 8 (b)(4)(ii)(B). PRI@ARY PROápC?.¶s asking customers to cancel or not buy Safeco insurance. urged mall customers to follow a legal course of action. *| á   ?  (1988) .  (1980) À| Facts: pnion struck Safeco ?itle Insurance Co. *|   vs.? e Board¶s reading of § 8 (b)(4) is too broad. !| aad t e union simply been engaging in and educational effort it would ave been protected. Can still andbill in Safeco situation under (".

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!| ? e pnion ordered its carpenters not to ang t e doors delivered by mW@A at t e jobsite.  cc   c  À| Class motes: If andbilling can¶t be coercive. !| Frouge was t us subject to a provision t at read ³no member of t is district council will andle any doors w ic ave been fitted prior to being furnis ed on t e job. ³aot Cargo´ Clauses *| m   ‘  (1967) À| Facts‰Frouge Corporation was a general contractor on a ousing project. *| Picketing vs. owever. and its application against t e primary employer a violation of 8(b)(4)(B)? !| Is t is a ot-cargo clause? À| aolding:mO.andle provision in a CBA a violation of 8(e). áon¶t need t e proviso. !| ? e Board Concluded t at t e ³will not andle clause´ was used by t e pnion to protect and preserve cutting out and fitting as unit work to be performed by t e jobsite carpenters. À| Procedural: ? e mW@A c arged t at by including t e ³will not andle sentence in t e CBA´. Cir. *| e maintenance against Frouge was t us. Congress just trying to make clear ow to interpret t e term ³coercion´ w/ t e proviso. Bus says yes.´ À| Issue: Is t e inclusion of a will-not. aandbilling: W at if andbilling is as effective as picketing. Frouge contracted to ave pre-fitted. w ereby Frouge agreed to be bound by t e rules and regulations agreed upon by local unions wit contractors in areas in w ic Frouge ad jobs. t e pnion violated 8(e) by entering into an ³agreement w ereby t e employer agrees to cease or refrain from andling any of t e products of any ot er employer. ? e determination w et er t e will not andle sentence and its enforcement must be made by asking (1) w et er. t e proviso (re publicity ot er t an picketing) can¶t ever apply. w ic were t en fitted and cut by t e union carpenters. Frouge t en wit drew t e prefab doors and substituted blank doors. Frouge ad a CBA in place wit t e Carpenters¶ Int¶l pnion. ³primary. pre-mac ined doors delivered by mat¶l Woodwork @anufacturers Ass¶n.´ and t at in enforcing t e sentence against Frouge.C. t e union violated 8(b)(4)(B) by forcing or requiring any person to cease using t e products of anot er manufacturer.´ !| ? e carpenters in t e area of Frouge¶s construction generally fitted t e doors on t e jobsite. treated t is kind of andbilling as coercive b/c it directly induced/encouraged a secondary strike. Obama says no as long as stationary. *| Bannering: Is t is a picket? ? e Board flip-flops. under all t e surrounding 135 | L a b o r L a w . can you really say t at andbilling really isn¶t coercive? á.

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t us. ?akes t e reduced cost of prefabricated products out of t e market.     . *| &44% also said t at bargaining oon t e subject was madatory by § 8 (a)95) as it concerned terms and condititions of employment. w ic does not reac employees¶ activity to pressure t eir employer to preserve for t emselves work traditionally done by t em. t e pnion¶s objective was preservation of work for t e employees of t e primary employer. À| Class Notes . . it is not a violation of 8(e). Basically treating t e clause as a subcontracting of work issue. *| Fm 38: ? e surrounding circumstances to look to in making t e determination of objective could include: À| e remoteness of t e t reat of displacement by t e banned product or services À| ? e istory of labor relations between t e union and Er w o would be boycotted À| And t e economic personality of t e industry. ? e legitimacy of suc clauses was implicitly recognized in &44%. !| ? e touc stone is w et er t e agreement or its maintenance is addressed to t e labor relations of t e contracting employer vis a vis is own employees. or (2) w et er t e agreements and boycott were tactically calculated to satisfy union objectives elsew ere. !| ? e board found t at t e objective of t e ³will not andle provision´ was preservation of work traditionally performed by t e jobsite carpenters. À| Rationale:8(e) exists to pro ibit ot-cargo clauses. w ic pro ibit employers from andling non-union cargo.  cc   c  circumstances.Critique of Work-Preservation (Antitrust Problem): W at if w ole construction sector pnionized in metropolitan area.But 8(e) tracks t e language of 8(b)(4)(B) and (A).áoesn¶t t is get into t e discernment of motives of t e pnion? (?om).

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a  .    ‘  (1967) ± !| Facts: An employer purc ased precut asbestos fittings in violation of its agreement w/ t e p t at required t e cutting to be done at t e employer¶s s op. Co-employees.Ct. affirmed t e mLRB¶s dismissal of a complaint under § 8(b)(4)(B). members of a sister-local union.    ? !| 3!- 3"  +0!%/ 3. Action supporting co-employees is not secondary even t oug t e economic interests of t e sympat etic employees are not directly involved.  (3()!(02$.´ mot a lot of guidance: look at t e structure of t e particular business. *| Union Signatory Clause vs. t e istory of labor relations to try to determine if t is is secondary or not. if t e employer 136 | L a b o r L a w . clearly secondary (trying to force R-2 to unionize). Problem w ere ? e p says ³employer will not andle products w ere t e producer of t at product doesn¶t pay p standard wages.@ *| Pressure by Co-employees . ? e clause is like on 684. !| aolding:S. refused to install t e precut fittings at anot er location in ?X. Standard Clause: If t is was you will not andle products w ere doesn¶t ave a p label.

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or is it primary b/c it¶s to preserve your own work b/c urts your own wages.  cc   c  doesn¶t ave sufficient equipment . (0-$@ *| Recapture of Work Formerly Done: Factual matter w ere you draw t e line. Is it secondary b/c saying can¶t use ot er truck company b/c need to pay more. @ust enforce t roug arbitration. Purc aser is really not a party to t e agreement. mOR@ALLY. *| Work Preservation vs. A p signatory clause is mEVER treated as primary (trying to alter R-2¶s relations ip w/ its employees). . t at¶s treated as SECOmáARY. . *| m  * 4. Cases split out by olding t at if t e case c ar. ad. but rat er see p to preserve work t ey mEVER ad.Work Acquisition: Primarily explained by concern re tec nology. t e K clause not as trying to preserve work t e employees ist. Remedy for arbitration is very complicated. *| ³Union Signatory´ Restrictions on Sale of Business: ?ypically are trying to follow t e work and trying to preserve it. p standard clauses are primary (a little bit case-by-case t oug ). . it¶s often permitted Bp? difficult to enforce t roug a work stoppage.

!| W en t e pret readed units arrived on t e site. !| ? is contract conflicted wit a rule in t e CBA between t e union and audik. ? is pressure was exerted against audik in order to c ange t e be avior of Austin. t at required t reading and cutting to be done on t e job site by t e employees of audik. 137 | L a b o r L a w . À| Procedure: Austin broug t a c arge against t e union and t e board conceded t at t e union¶s refusal to install t e units was based on a valid work- preservation clause covering work traditionally done by audik employees. finding t at t e union struck audik to compel it to onor a work-preservation clause. ? e board¶s emp asis on rig t to control work was not erroneous. t e sub-K.$$( 3 (0 !-+ ($%% ? us. and t at t is manufacturer would cut and t read t e internal piping in t ese units. !| ? e Court of appeals set aside t e Board¶s order. Enterprise Ass¶n of Steam Pipefitters. w ic was valid and primary. . t e object of t e union¶s pressure was eit er forcing audik to terminate its sub-K wit Austin or forcing Austin to c ange its manner of doing business. t e union employees of audik refused to install t e units. . and so it was secondary and illegal. etc . À| Issue: Is t e Board¶s rig t to control doctrine valid? À| aolding: Yes.&'::<: À| Facts:Austin was a general contractor t at awarded audik a subcontract for eating.    5 á    NLRB v. À| Rationale:? e fact t at Austin controlled t e disputed assignment of work meant t at any labor pressure against audik necessarily included an object of ceasing to do business wit Austin in violation of §8(b)(4)(B).. !2+ ( 3 $% (0(  %- %% $( '$(" (0 . ? is contract specified t at Austin would buy and install climate control units manufactured by t e Slant/Fin co.

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4 ((  *| m  *. for a union to create work stoppages for t e purpose of securing suc an agreement (w ic would ot erwise violate 8(b)(4)(A)).$$.´ Because it was so difficult to reac t e contractors¶ workers directly./ $% !- 2($ $% !0$2 (0 "/ ($. 4(  $%   !$)( (' ""/ %2$%(0"'(0('(" 0$(% '(0 ( '(  !(0  4'-$(0 4Œ. < . À| 0!   ( ( '(  4 $ $ % ( 02 0"( ("3 3 !- 2($'"   ((05('($ %.  $$. It embodies an exemption from §§ 8(b)(4)(B) and 8(e).3 "  $! ('0$".   ·=. t eir provisos provide exemptions from 8(e) t at are different in scope À| Garment Industry Proviso: Don¶t worry about this.  ( (0 1' ( ("+ (0 4. and could ave bargained wit t e union over premium pay or ot er substitutes for t e lost work. !| Practical result: It is lawful to enter into an agreement not to contract wit nonunion s ops.  cc   c  À| áissent: pnder ($" %!-.$. Austin was t e target of t e pnion¶s pressure. ? is earned t e manufacturers t e label ³jobbers. $ '((2-(-$  $((!00 33'$("/.$$.)%$4/.(0'" $%0 (($.)% (""/"''((2-($!/(0((-(0'(($2 (0$!('0$". !| It is inconsistent wit ($"%!.$$. À| Construction Industry Proviso: 138 | L a b o r L a w .to old t at because Austin maintained t e rig t to control assignment of t e disputed work. t e clause was primary because it was designed to benefit audik¶s own employees and not to affect anot er employer¶s personnel policies. !| Reasoning: ? e garment manufacturers would farm out manufacturing work to contractors t at paid very low wages to t eir employees.!(0* 0(/(0(""/!$(( % ' (0 2"" '(  (0                   (4!0( $%" $( 3/ . and for t e union to create work stoppages for t e purpose of forcing a manufacturer or jobber to cease doing business wit a nonunion contractor (w ic would ot erwise violate 8(b)(4)(B)./ (3(0-("'(0()""/$(%2((0 !0$(0/)4.B/c t e garment and construction industries differ from ot ers in t eir structure and istory.  .+ (0$ (0  '(2(/  $ 3'( '$%/   ""/ 4 ( !0$ 4. !| ? e garment industry proviso is broader. !| audik was not a neutral. and provides t at NLRA cannot bar enforcement of hot cargo clauses by strikes or other economic pressures in the garment industry.$ 8 (0( /   4". À| 4"‰3 33'$("/. unions t en pressured t e jobbers to do business only wit unionized contractors.(% ( % (0$.(($.

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À| Valid enforcement: demand for arbitration or a lawsuit. !| Limitations: *| ? e proviso does not protect agreements barring use at t e construction site of materials made elsew ere by a nonunion company ( ($"%!-$. *| A strike to obtain a ot cargo clause relating to job-site work is lawful. Connell. À| Ct. !|    . *| A strike to enforce a lawful ot cargo clause violates 8(b)(4)(b) because its object is forcing t e signatory employer to cease doing business wit nonunion contractors. *| aolding: ? is agreement falls outside t e construction industry proviso because t e union represented no employees of Connell or of ot er contractors on t e job site.  (1975) *| Facts: ? e union soug t to organize plumbing and mec anical subcontractors in t e áallas. Bp? a strike to obtain a ot cargo clause referring to off-site workviolates ·8(b)(4)(A) and subjects t e pnion to damages under §303. even if t e contractor is doing work at t e site. ?exas area. was afraid of ³top-down´ organizing of entire construction sites w/o ever consulting t e employees affected. !|         -. ? e ot cargo agreement was limited in terms to mec anical sub-k work performed only at t e job site.).  cc   c  !| @eant in part to overrule $2% but didn¶t go all t e way. It picketed a construction site under t e supervision of t e general contractor. and possibly to common-situs relations ips on particular jobsites as well. you can ave a clause in a K t at says we p workers don¶t ave to work at a construction site w ere non-p workers are going to be present at t at site. and ence t e concern of avoiding job-site frictions was absent. until t e GC agreed to use only sub-ks t at were under contract wit t e union. or ot er measures not proscribed by clauses (i) and (ii) of §8(b)(4). À| ? e proviso extends only to agreements in t e context of CB relations ips. B/c of frictions between union and nonunion workers on a construction site.

´ ?op-down org.+ .  139 | L a b o r L a w . ok in construction sector (concern re non-ps aving to work w/ ps on same site).³We believe t at Congress endorsed subcontracting agreements obtained in t e context of a collective bargaining relations ip²and decided to accept w atever top-down pressure suc clauses mig t entail.  m# (1982):áeemp asized bot t e job-site friction and top-down organizing concerns identified in $$"". *| m  *     #.

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!| § 303 and Board proceedings can be instituted concurrently. ? e two ps under umbrella K to ave trades council resolve dispute b/t p as to w o gets t e work . A Board determination t at t e union violated § 8(b)(4) will usually preclude t ose issues from being relitigated in court. only compensatory. p-2 pickets employer and claims work of t e mortar to receive t e work. enforcement sc eme. But affects rig t to picket. À| Work Assignment Disputes !| Employer works w/ two different ps w o bot claim t e same work. ? e p t at gets t e work. @ust analyze t e effect and interplay of t ese sections. t e employer doesn¶t necessarily ave to assign it to t em. w en ps uncertain ( & ( vs. *| Issue: áoes a voluntary process agreed to by t e psnot involving t e employer protect t e p from an 8b4á c arge? *| aolding:mo. p-1 and p-2 already agreed to resolve. injunction. À| Section 303 Damages Action: ? e exception to mLRA¶s excl. !| mo punitive or injunctive relief. aowever. !| § 8(b)(4)(á) . 2 ps: ?ile Setters (p-1) and Plasterers¶ pnions (p-2). !| ?ension b/t primary jurisdiction w/ Board and running to court to get prelim. Employer was not a party and oug t to be able to present w y p-1 s ould get t e work instead of t e p-2. admin. *| Reasoning:? e 10(k) earings don¶t really bind anyone. If t e parties agree to voluntary dispute resolution mec anism. 140 | L a b o r L a w . 10(k). !| ? ese injunctions differ from 10(j) injunctions in t at 10(l) are issued w/o Board authorization and are mandatoryon proper finding. t e regional director is REQUIRED. 10(l). Employer t en files an § 8(b)(4)(á) c arge and p-2 argues under t e statute.  cc   c  À| Section 10(l) Injunctions: For any c arge alleging violations of §§ 8(b)(4)(A)±(C). state tort law may provide t ese t roug supplemental jurisdiction. etc. aut orizing ³w oever s all be injured in is business or property by reason of any violation. mo atty fees.   #  m :' (1971) *| Facts:?exas State ?ile & @artini ?ile. !| m#. mo CBA w/ p-2. upon a finding of ³rsbl cause to believe such a charge is true. especially w ere t e conduct was violent.´ of § 8(b)(4) to recover damages in fed¶l district courts. 3' picketing vs. §§ 8(b)(4)(á). t en don¶t ave to old t e 10(k) earing. !| Suc actions may be broug t by ³primary´ or ³secondary´ employers. ?rades Council says work goes to p-2.. 8(e).Employer can file c arge and Board as earing as to w ic p s ould get t e work. and 8(b)(7). Employer wants p-1 so p-2 pickets. as well as t ird parties suffering direct and foreseeable injuries. soug t to promote orderly resolution of underlying work-assignment disputes and to avert resulting work stoppages. !| Law uncertain re secondary/primary distinction.? e trouble is t e employer is not a part of t e umbrella agreement and not a part of t e rg as to w o gets t e work. andbilling) will pus twd andbilling to not open t emselves up to t ese damages.´ to seek injunctive relief in t e fed¶l district courts. and 303.

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  cc   c  141 | L a b o r L a w .